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Recent Cases and Legislation

 

Housing Law Updates

Possession & General Housing Law

Click on the links below to see recent cases in each area of law:

Secretary of State for the Environment, Food & Rural Affairs v Meier

[2009] UKSC 11

Lord Rodger, Lord Walker, Lady Hale, Lord Neuberger, Lord Collins

Where persons occupied land, the court did not have power to grant a possession order in respect of a separate plot of land that was not being occupied by those persons

The appellant travellers (T) had established an unauthorised encampment in woodland owned by the Claimant (C). C applied for a possession order in respect of the woodland and also in respect of additional separate sites nearby. C also applied for an injunction restraining T from re-entering the woodland and the other sites. The Court of Appeal granted both the wider possession order and the injunction.

Held : (1) There was no legitimate basis for making a precautionary possession order in respect of land the persons were not occupying but were threatening to occupy. Such an order was nonsensical as it required the persons to deliver up possession of land that they did not occupy (Drury v Sec State for Environment Food & Rural Affairs [2004] EWCA Civ 2002, overruled).

(2) An order for possession could be made in respect of the whole of a single plot of land, where persons occupied only part of it. However, that reasoning could not extend to apply to land wholly distinct or miles from the occupied land (University of Essex v Djemal [1980] 1 WLR 1301, distinguished)

(3) The court was entitled to grant an injunction preventing the persons entering the occupied land and the unoccupied land. The court should not normally grant an injunction which it would be unable to enforce, but could grant one if it was considered to have a real deterrent effect.

(4) (Per Lady Hale) The Drury wider-order for possession may be developed, provided it can be tailored against known persons, who have already intruded on C's land, are threatening to do so again and have been given an opportunity to contest the order.

Swindon BC v Redpath

[2009] EWCA Civ 943

Rix LJ, Lord Neuberger, Carnwath LJ

When considering whether to grant an Anti Social Behaviour Injunction, the term 'housing-related' in s.153A HA 96 was to be construed widely and encompassed the actions of a former-tenant even where the victims were not LA tenants themselves

The appellant (R) was a former secure tenant of the LA who had been evicted due to his behaviour whilst drunk. R pursued an ongoing campaign of harassment against his neighbours, including breaches of earlier anti social behaviour injunctions. Following his eviction, he persisted in harassing his former-neighbours and a further ASBI was granted. R argued that as he was no longer a LA tenant and none of the main victims were LA tenants, nor was any of the property LA stock (apart from a block of garages), the court had no jurisdiction to grant an ASBI.

Held : The appeal was dismissed. The jurisdiction in relation to ASBI's and the term 'housing-related' in s.153A were to be construed broadly. A LA's housing management functions were broad and included preserving the peace in the neighbourhood of its residential property. R's conduct was 'housing-related', viz directly or indirectly affecting the housing management functions of the LA. These functions included concern for its tenants and property (including its garages). Viewed as a whole the LA's functions embraced its responsibility to its continuing tenants and owner-occupiers for the conduct of a former tenant. There was no requirement in HA 96 that the recipient of an ASBI must be a tenant.

Taylor v Central Bedfordshire Council

[2009] EWCA Civ 613

Waller, Lloyd, Richards LJJ

A LA with a right to possession should take into account the personal circumstances of an occupier when bringing possession proceedings. However, it did not follow that there would ever be circumstances in which it would be unreasonable to seek possession against trespassers

The trespassers (T) occupied various dwellings on land owned by the LA. The LA commenced possession proceedings in respect of the land and a possession order was made. T appealed, arguing that the LA's claim for possession was in breach of Art.8 ECHR. T argued that a LA should always have regard to the circumstances of trespassers and act proportionately and, in the instant case, this may have led to a decision not seek possession.

Held : (1) Although a decision of a LA was subject to JR, it could not be a ground of challenge that the LA had failed to take into account personal circumstances when it had an absolute right to possession (Kay v Lambeth applied). Accordingly, a defence based solely on the personal circumstances of the occupier should be struck out. Art 8 rights were safeguarded by the common law requirements that the landowner must establish to gain possession.

(2) One such requirement was to proceed by obtaining a court order where the trespasser resided on the land. The court could then take into account the personal circumstances of the trespasser and had a discretion whether to suspend the order for possession for a short period.

(3) A LA should take into account the personal circumstances of the occupier but it did not follow that there would ever be circumstances in which it would be unreasonable to seek possession against trespassers. Personal circumstances could only be relevant to the extent to which a court was prepared to postpone execution of the possession order - this was a matter for the court itself.

Redstone Mortgages Plc v Welch & Jackson

LTL 29/06/2009

Birmingham County Court - HHJ Worster

An important decision concerning sale and leaseback transactions. The first case in which a court has had to consider such schemes

This claim concerned the increasingly common 'sale and leaseback schemes' whereby property owners agree to sell their home to a firm which pays off the mortgage and then grants a tenancy back to the former-owner so that they may continue in occupation.
J, who had owned the property for many years responded to such an advertisement from a firm run by D & W. J agreed to sell his home to W following a representation that (1) Mr & Mrs J could stay in the property for the rest of their lives, (2) this extended to their 18 year-old daughter, (3) they could buy the property back at a discount of 10% off the market price.
J remained in possession of the property; however, W defaulted on the mortgage repayments and the mortgagee sought possession. W did not defend the claim and the main issue before the court was J's position vis a vis the mortgagee. During trial, the mortgagee conceded the right to set aside the transactions against W on the grounds of misrepresentation

Held :
(1) Having regard to the construction of the tenancy agreement and s.19A HA 88, the tenancy granted to J was an assured tenancy and not an assured shorthold

(2) J was further entitled to the rights claimed by virtue of proprietary estoppel

(3) Importantly, the lender was bound by J's rights. The assured tenancy, the estoppel rights and the right to set aside all took effect before the mortgage. These interests were capable of binding successors pursuant to s.116 LRA 2002 and, as J was in actual occupation of the property, they amounted to 'overriding interests' which took priority over the mortgagee (para.1&2, Sch.3 LRA 2002)

(4) Due to the 'registration gap', W could make a disposition which did not require registration prior to the mortgagee's interest being registered. In this case, W had granted a tenancy (which, being for less than 7 yrs did not require registration) before the mortgagee's interest (for which registration was required) had been registered

Manchester City Council v Pinnock

[2009] EWCA Civ 852

Mummery, Lloyd, Stanley Burnton LJJ

Following a demoted tenancy order, a Landlord's subsequent decision to seek possession was not open to review, save on procedural grounds. The court could not review the substance or rationality of the landlord's decision

The tenant (T) was a secure tenant of the LA. Following anti social behaviour by T's children, the secure tenancy was converted to a demoted tenancy. Following the demotion order, the children's behaviour did not improve and the LA sought possession.

Held : The obtaining of possession of a demoted tenancy was a two-stage process. The first stage, an application for demotion, involved the court considering the issues of reasonableness and proportionality. The second stage did not require the same level of scrutiny and restricted the court to consider only whether the procedure under s.143E and 143F had been followed. The court could only review the landlord's decision under the second stage if his decision amounted to Wednesbury unreasonableness (one that no reasonable person would consider justifiable).

Hussain v Bradford Community Housing Ltd

[2009] EWCA Civ 763

Aikins, Patten LJJ

A notice to quit that contained two possible dates of termination was not ambiguous as only one of the dates complied with the tenancy agreement

H and his ex-partner, K, held a weekly tenancy ending on a Friday. The tenancy agreement provided that the tenants should give the Landlord 28 days written notice if they wished to terminate the agreement. Following a break-down in the relationship, K served a notice to quit with effect from the last Sunday of the month, "or the day on which a complete period of [the] tenancy expires next after the end of four weeks from the date of the notice". H argued that the notice was invalid due to ambiguity as it specified two alternative dates for termination.

Held : Although the notice to quit contained two possible dates of termination, only one of those complied with the terms of the tenancy agreement. There was no basis on which to construe the notice to exclude the 'catch-all' provision. It was obvious that the notice intended to terminate the tenancy in accordance with the tenancy agreement (Mannai Investment v Eagle Star applied)

R (Weaver) v London & Quadrant Housing Trust

[2009] EWCA Civ 587

Rix, Lawrence Collins, Elias LJJ

The termination of a tenancy by a hybrid authority (in this case a Housing Trust) was a public act and was, in principle, subject to human rights considerations

This was an appeal from the decision of the Divisional Court, which decided that a registered social landlord is a public authority within the meaning of the HRA 1998 where its functions in managing and allocating housing stock are of a public nature. Accordingly its decisions are open to judicial review and subject to the HRA 1998. The Housing Trust appealed.

Held : The appeal was dismissed. As a hybrid authority, the Housing Trust's action in terminating the tenancy was not a private act when considered in the wider context of the general housing functions being carried out by the Trust. Although the termination of the tenancy involved the exercise of private law rights, this was so inextricably linked with the provision of social housing as a public function that the termination was a public act and therefore, in principle, subject to human rights considerations.

 

Alexander-David v LB Hammersmith & Fulham

[2009]EWCA Civ 259

HHJ Gilbart QC

A LA was unable to obtain possession of a property let to a minor as a non-secure tenancy as it was unable to serve a NTQ without being in breach of trust

The tenant (T) was granted a non-secure tenancy by the LA when she was under 16. Following rent arrears and complaints about her behaviour the LA served T with a Notice to Quit and commenced possession proceedings. 

Held : s1(6) LPA 1925 prohibits minors from holding a legal estate in land. S1(1) Sch.1 TLATA 96 provides that any such attempt to grant a legal estate to a minor will result in the grantor holding the land in trust for the minor.

The LA had argued that it had intended to grant T an equitable tenancy. However a landlord who had capacity to grant a legal tenancy, and who granted a tenancy without expressly stating that something less than a legal tenancy was being granted, could not subsequently say that only an equitable tenancy had in fact been granted. In the circumstances of this case, a legal tenancy had been granted; as such, the LA held the land on trust for T.

Accordingly the LA would have to serve the NTQ on itself as trustee for T. However, doing so would mean the LA was acting in breach of trust. The LA could not gain possession of the property so long as the property was held in this manner.

The Court suggested possibilities for LA's in similar situations, namely: (i) Granting a licence of the property, (ii) an agreement to grant a lease until the minor turned 18 - this would create an equitable tenancy, (iii) appointing someone else as trustee and serve the NTQ on that trustee.

 

 

Austin v Southwark LBC – 16/02/09

[2009] EWCA Civ 66

Pill LJ, Arden LJ, Longmore LJ

A right to revive a secure tenancy under s.85 could not be exercised after the tenant's death and did not enure for the benefit of his estate

The tenant (T) was granted a Secure Tenancy in 1983. In 1987 an order for possession was made and, shortly thereafter, T became a tolerated trespasser. In 2005 T died intestate leaving his brother in occupation of the property. The LA sought possession from T's brother who, in turn, applied to represent T's estate and exercise the right to revive the tenancy under s.85 HA 85.

Held : The right to revive a tenancy under s.85 could only be exercised by a party to the possession proceedings (or a person deriving title through him under the HA 85). The right to revive could not be transmitted to T's brother, nor did it survive his death for the benefit of his estate.

 

Knowsley v White; Honeygan-Green v LB Islington; Porter v Shepherds Bush – 10/12/08

[2008] UKHL 70

Lord Hoffmann, Lord Walker, Lord Brown, Lord Mance, Lord Neuberger

House of Lords considers the issue of the Tolerated Trespasser

In these conjoined appeals various issues were considered:

(1) Where a suspended order for possession was made under HA 88, the date when the assured tenancy came to an end;

(2) Whether a court, when making a suspended possession order under HA 85, could proleptically direct that the order could be discharged once its terms had been complied with;

(3) Whether a court could take that step even if the terms of suspension had not been strictly complied with;

(4) Where a court had granted a suspended possession order under HA 85 without a proleptic discharge provision, whether a tenant could seek a discharge or variation of the order where he had not complied with the terms of suspension but had paid off all arrears and costs

(5) Whether the right to buy under HA 85 revived with the discharge of a suspended possession order

Held:
(1) An assured tenancy subject to a suspended possession order did not come to an end until possession was delivered up.

(2) Under s.85 HA 85 it was open to a court to include a proleptic discharge provision in a suspended order for possession

(3) s.85(4) HA 85 gave the court the power to discharge the order if the conditions were met, but also the power to consider discharge of the order even if the strict terms of the order had not been complied with

(4) A Tenant could seek a discharge or variation of a suspended possession order even where the order provided that it could not be enforced once all arrears and costs were paid and the tenant had breached the terms of suspension yet paid all arrears and costs. The decisions of Marshall v Bradford and Swindon BC v Aston were wrong and overruled.

(5) A revival of a secure tenancy also revived the Tenant's right to buy

 

Wandsworth LBC v Whibley – 14/11/2008

[2008] EWCA Civ 1259

Tucker LJ, Sedley LJ, Lawrence Collins LJ

Following the breach of a postponed possession order, there is no general rule that the application to fix a date for possession should be dealt with summarily

Held : Following the making of a possession order postponed on conditions and in circumstances where the Tenant has allegedly breached one of those conditions, the Landlord must prove that the condition has been breached. In many cases, it may be possible for the court to deal with this summarily where no triable answer has been advanced by the Tenant; however, in this case it was not. A Tenant's unsupported assertion that he has an answer will not justify a hearing, nor will a bare denial, save in exceptional circumstances.

 

Doherty v Birmingham City Council

[2008] UKHL 57

The House of Lords confirmed the principle of Kay v Lambeth LBC [2006] UKHL 10 should be applied when considering a defence under Art 8 ECHR. The Defendant must fall within one of two gateways to succeed with an Art.8 defence.

Held : When a court is faced with an Art 8 defence to a claim for possession, the assumption is that domestic law strikes a fair balance and the only way a challenge can be made if the Defendant has no legal or equitable right to possession is to prove one of two gateways: (a) if there is a seriously arguable challenge to the law itself under Art.8 (i.e. requiring the court to interpret the law in a compatible way or make a declaration of incompatibility), or (b) on public law grounds that the decision was one which no reasonable person would consider justifiable.

Their Lordships also commented on McCann v UK , which had stated that Art 8 was engaged in every possession claim and would require an examination of the proportionality of making an order for possession. McCann also suggested that the judicial review procedure was not adequate to satisfy the test of proportionality. Lord Scott stated that the decision was based on a mistaken understanding of the procedure in this country.

LB Lewisham v Malcolm

[2008] UKHL 43

A LA was not acting discriminatorily when evicting a disabled tenant after he had sublet the property on account of his schizophrenia

The House of Lords so held in allowing the appeal of the LA against a secure tenant (T) who suffered from schizophrenia and had not taken his medication for some time. In breach of the tenancy agreement T sub-let his flat at which time T ceased to be a secure tenant by reason of s93 HA 85. The LA subsequently gave notice to quit and commenced possession proceedings.

Held : (1) The LA's reason for commencing possession proceedings was not related to T's disability for the purposes of s24(1) DDA 95. The words “relate to” denote “some connection, not necessarily close, between the reason and the disability”. A reason does not relate to a disability unless the fact of the physical or mental condition in question has played some causative part in the decision-making process of the alleged discrimination (per Lord Bingham)

(2) Accordingly a Landlord can only be liable if he knows or reasonably ought to know of the tenant's disability.

(3) When considering whether the tenant has suffered “less favourable treatment” the correct comparator was not with tenants who did not have a disability and therefore did not sublet, but with tenants who had sublet but whose sub-letting had no connection with the disability. In the instant case, any other tenant who had sublet would have been treated the same way; accordingly, there was no discrimination ( Clark v Novacold disapproved).

(4) However, if an eviction is found to be discriminatory then it will not be allowed even where the claim for possession is otherwise unanswerable at common law. Accordingly an absolute right to possession can be defeated by a discrimination defence.

R (Weaver) v London & Quadrant Housing Trust

[2008] EWHC 1377 (Admin)

Richards LJ, Swift J

A registered social landlord is a public authority within the meaning of the HRA 1998 where its functions in managing and allocating housing stock are a public function. Accordingly its decisions are open to judicial review and subject to the HRA 1998

The claimant (T) was an assured tenant of a RSL, which sought an order for possession against her on the mandatory Gr.8 (8 weeks rent arrears). The RSL's policy stated that Gr.8 was to be used when all alternatives had failed. T argued that the RSL was a public authority amenable to judicial review, was in breach of a legitimate expectation in failing to pursue all reasonable alternatives before resorting to Gr.8 and that its decision to rely on a mandatory ground was in breach of Art.8 ECHR.

Held : (1) The allocation and management of housing stock was a function of a public nature. Landlords operating within the social rented housing sector can be said to have taken the place of LA's. In the circumstances, the RSL was a public authority within the meaning of s.6(3)(b) HRA 88.

(2) There was no evidence that T had relied on the RSL's policy document or held any expectation that it would be complied with. In addition, the reference in the policy was not clear unambiguous and unqualified so as to constitute a legitimate expectation - it was merely guidance, not prescription. Even if the legitimate expectation had been accepted, considering T's history of rent arrears, there had been no breach of it on the facts.

(3) As there was no breach of a legitimate expectation, the decision to evict cannot have been disproportionate. The Art.8 ECHR argument therefore also failed.

Admiral Taverns v Daniel – 21/07/2008

[2008] EWHC 1688 (QB)

Teare J

An appellate court has jurisdiction to stay the execution of a warrant for possession in spite of s.89(1) HA 80 which precludes a stay for more than 14 days

Held : Although s89(1) HA 80 precludes a stay of execution of a warrant for possession for more than 14 days, the High Court was entitled to grant a stay of execution pending the determination of an application for permission to appeal. The restriction contained in s89(1) applies only to the court making the order and not the court exercising appellate jurisdiction.

Newport CC v Charles – 17/07/08

[2008] EWCA Civ 893

Pill LJ, Sedley LJ, Longmore LJ

The LA could not evict a secure tenant who had hidden his mother's death for three years to avoid being moved to a different property under Gr.16. The time limit for evicting him had expired.

The tenant (T) had succeeded to a secure tenancy when his mother died. For three years T intentionally failed to notify the LA of his mother's death. The LA sought possession on Gr.16, but could only rely on this ground within three years of the mother's death. The LA argued that T was estopped from asserting the date of his mother's death as a defence to the claim.

Held : The LA's right to possession against a successor is not an interest in land capable of giving rise to a proprietary estoppel. The time limit had expired prior to the LA finding out about the mother's death and the LA was unable to rely on Gr.16.

McCann v United Kingdom

ECHR (App No. 19009/04)

On the facts, the LA's eviction process against H (an occupier with limited security) was in breach of Art 8 ECHR

The appellant (H) and his wife (W) were secure tenants of LA property. W complained of domestic violence and moved elsewhere. Later W and H's relationship improved and she supported his application for a transfer to different accommodation. Throughout this time the LA was under the impression that, when W had moved out, the property became vacant; in fact, H had moved back in shortly thereafter. The LA visited W and asked her to sign a notice to quit. This notice brought to an end the tenancy of H and W. The LA then sought possession against H.

Held : The property occupied by H was his “home” within the meaning of Art 8(1). The notice to quit and possession proceedings constituted an interference with H's Art.8 rights.

Although the interference was in accordance with the law and had pursued the legitimate aim of protecting the rights and freedoms of the LA to regain possession, the question was whether this interference was proportionate to the aim pursued, and thus “necessary in a democratic society”.

If H had the advantage of a full hearing before an independent tribunal [for example if the LA had sought possession on Gr2A], the tribunal could have considered H's personal circumstances and whether W had truly left home because of domestic violence; such a procedure would have been proportionate and in accordance with Art.8. However, the method adopted by the LA in bypassing the statutory regime via the request for a notice to quit from W was a summary procedure and not proportionate.

S v Floyd

[2008] EWCA Civ 201

Mummery LJ, Lawrence Collins LJ, Munby J

The DDA 1995 did not provide the tenant with a defence to a claim for possession under the mandatory ground for rent arrears where those rent arrears were admitted and had not been pleaded as relating to the tenant's disability

The Court of Appeal so held in the tenant's (S) appeal against a possession order in favour of the landlord (F). S was an assured tenant of a flat and had fallen into significant rent arrears. F commenced possession proceedings under, inter alia, Gr.8 HA 88 (at least 8 weeks' rent lawfully due). S filed a defence in which he accepted the rent arrears and stated that the same was withheld due to F's excessive rent increase. S also stated he would suffer exceptional hardship due to “disability”. At the hearing, S's representative sought an adjournment under CPR Pt21 due to concerns over S's mental capacity; this was refused and an outright order for possession granted.

S appealed contending (1) The Judge was unreasonable in refusing to adjourn to investigate S's mental capacity; (2) the Judge erred in law in concluding that there were no exceptional circumstances to adjourn the claim; (3) the Judge erred in law in concluding that S had no defence on the ground of disability discrimination.

Held : Appeal dismissed. (1) The Judge was entitled not to adjourn so as to investigate S's mental capacity - the test for mental capacity is issue specific and there was insufficient material to support such a concern.

(2) No application to adjourn the claim due to exceptional circumstances was made and, in any event, there were no exceptional circumstances raised save for those relating to mental capacity, which could not assist S

(3) The DDA 95 could not assist S in this case. Under the Act it was not unlawful to evict a disabled person from premises by lawful process. S had already admitted the arrears and that he had no defence to the claim. A finding that the reason for the proceedings related to S's disability was impossible as, on S's own evidence, he had failed to pay rent because of F's attempts to increase rent.

Comment : This case provides a comparison with Malcolm v Lewisham LBC yet leaves open the possibility of future litigation in this area. The most pertinent point in the judgment is the portion dealing with the extent to which the DDA 95 may provide a defence to a claim for possession relying on one of the mandatory grounds

In Malcolm v Lewisham LBC, the Court of Appeal held that, where a landlord's reasons for seeking possession were related to a tenant's disability, then the DDA 95 may provided a defence to the claim; however, Malcolm was a claim under a contractual ground. Similarly, it is established law that the DDA 95 may provide assistance where a landlord's reasons for claiming possession relate to a tenant's disability and the claim is under a discretionary ground ( Manchester CC v Romano (2004) EWCA Civ 834)

In this case, it was argued that the Malcolm principle could be extended so as to apply to mandatory grounds. The Court refused to extend the principle due to the fact that, in Malcolm, the landlord relied on its contractual right to possession, and further that, on S's own evidence, his reasoning for not paying rent was not related to any disability.

The Court's language, however, leaves open the possibility that, if a tenant can point to an appropriate relationship between the landlord's reasons for claiming possession and a tenant's disability then the DDA 95 may provide a defence irrespective of the mandatory nature of the ground for possession. To this end, the court referred to the unreported case of Bernstein v Tate (December 21, 2007) in which permission had been granted in respect of a possession claim brought under s.21 HA 88 on the ground that the real reason for possession (rent arrears) was related to the tenant's disability.

The Court concluded the judgment with a plea for the House of Lords to provide guidance on this area of law and it is hoped that the anticipated House of Lords judgment in Malcolm v Lewisham LBC will do just that.

 

Honeygan-Green v Islington LBC

[2008] EWCA Civ 363

Pill LJ, Keene LJ, Maurice Kay LJ

A revival of a secure tenancy under s.85(4) HA 85 also revived the tenant's right to buy (together with any accrued steps in the right to buy procedure)

The Court of appeal so held in allowing the appeal of the tenant (H) against a decision in favour of the LA. H had exercised her right to buy her property under s.122 HA 85; this was accepted by the LA. Before completion the LA obtained a suspended possession order on account of rent arrears; H subsequently obtained a discharge of this order under s.85(4). H thereafter sought to complete the right to buy but the LA refused on the ground that s.121(1) prohibited the right to buy where a tenant was obliged to give up possession. The Judge agreed with the LA and held that the terms of the order amounted to a permanent restriction on the right to buy and s.85(4) did not revive the right to buy.

Held : s.121(1) merely prohibited the taking of a step exercising the right to buy while a possession order was in existence. If the secure tenancy was revived by the court before possession had been given up, then the right to buy (together with any accrued steps) revived with the tenancy. However, it was open to the court in discharging the order under s.85(4) to make a revival of a tenancy conditional upon the tenant not pursuing the existing right to buy claim, but starting afresh, if this was just in the circumstances.

Mansfield District Council v Langridge

[2008] EWCA Civ 264

Sir Mark Potter, Lloyd LJ, Gibson LJ

A secure tenancy was created where T had enjoyed exclusive possession of a flat even where the parties had expressly agreed otherwise

The Council (C) granted a secure tenancy to the Defendant (D) in 2004. C later sought possession of the property. Before possession was ordered, D suffered a serious assault and, whilst in hospital, his mother returned the keys to the property. D brought injunctive proceedings against C seeking the return of the keys during which proceedings C agreed to grant D a licence of a second property until the resolution of the first proceedings. In due course C was granted possession of the first property and D sought to argue that he was now a secure tenant of the second property.

Held : The licence for the second property fell within s.79(3) HA 85 as the property was a dwelling house, exclusively possessed by T and, by virtue of his exclusion from the first property, was entitled to treat it as his only home. The second property was further clearly a separate dwelling for the purpose of s.79(3).

The law supervenes over the intentions of parties; accordingly, on the basis of the above analysis, D was a secure tenant irrespective of the parties' contrary intention.

 

 

Wandsworth LBC v Randall

[2007] EWCA Civ 1126

Sir Anthony Clarke MR, Dyson LJ, Jacob LJ

Gr.16 of Sch2 HA 85 involves consideration of whether the property is more extensive than required for the tenant. In determining the same, the court must consider the composition of the tenant's family at the date of the hearing, not the date of succession

The Court of Appeal so held in dismissing the appeal of the LA against an order for possession of a secure tenancy occupied by R. R's grandfather was granted a periodic tenancy in 1975 and, in 2004, after the tenancy had become secure, R's grandfather died. R, who had been living alone with his grandfather, succeeded to the tenancy and the LA served a notice seeking possession on the ground that the property was more extensive than required. Between service of the notice and the date of hearing, R's mother and half-sister moved into the house. The court had to decide whether the date at which R's family members were treated as such for the purpose of Gr.16 was the date of succession or the date of the hearing.

Held : Gr 16 allowed a court to order possession if three conditions were satisfied:

(1) The accommodation had to be more extensive than was reasonably required by the tenant. Considering the following conditions, the tenant's requirements were to be judged at the date of the hearing.

(2) Suitable alternative accommodation must be available for the tenant. This required consideration of accommodation that “will be available” (s.84(2)(c)); this was a date later than the hearing and certainly later than the succession.

(3) It must be reasonable to make the order. This reasonableness test required consideration of all relevant circumstances existing at the hearing.

In the circumstances, the composition of the family for the purposes of Gr.16 was not fixed at the date of the succession, but was to be determined as at the date of the hearing.

 

Sandwell MBC v Hensley

[2007] EWCA Civ 1425

Sir Andrew Morritt (Chancellor), Arden LJ, Gage LJ

The LA was entitled to an outright order for possession where the tenant had been convicted of cultivation of cannabis. Only in exceptional circumstances, where there is cogent evidence to demonstrate that the particular conduct has ceased, should an order be suspended

The Court of Appeal so held in allowing the appeal of the LA against a suspended order for possession. H was convicted of an offence involving the large-scale cultivation of cannabis and the LA thereafter sought an outright possession order. The Judge ordered possession but suspended it for 2 years

Held : Where an individual has committed a criminal offence a possession order should only be suspended in exceptional circumstances where there is cogent evidence to demonstrate that the offender's particular conduct has ceased (Bristol CC v Mousah). LA's and providers of social housing had a duty to keep areas free of criminal conduct; unless a court was provided with evidence demonstrating real hope that an individual had changed their ways, an outright possession order would be appropriate.

Raglan Housing Association v Fairclough

[2007] EWCA Civ 1087

Chadwick LJ, May LJ, Moore-Bick LJ

Gr.14(b)(ii) of Sch2 HA 88 applied not only to offences committed during the period of the tenancy but also to offences committed before the tenancy commenced

The Court of Appeal so held in dismissing the appeal of the tenant (F) against an order for possession of an assured tenancy of a cottage. F had previously been a tenant of a nearby property during which time he had been convicted of serious sexual offences. When R found out about this conviction it sought to determine the current tenancy and obtain possession of the cottage. F argued that the offences relied on had not been committed during the current tenancy and that Gr.14(b)(ii) could not apply to offences committed before the tenancy commenced.

Held : It was arguable that Gr.14(b)(i) (conviction for using the house for an illegal or immoral purpose) applied only to behaviour during the current tenancy. However, Gr.14(b)(ii) (conviction for an indictable offence in the locality) was worded much more broadly with reference to the locality in general. There was nothing in the language of the statute to justify limiting the scope to offences committed during the tenancy.

Courtney Malcolm v Lewisham LBC – 25/07/2007

[2007] EWCA Civ 763

Arden LJ, Longmore LJ, Toulson LJ

It would not be lawful to order possession of a property if this would discriminate against a disabled person as s22(3) of the Disability Discrimination Act 1995 provides that such discriminatory treatment is unlawful

The Court of Appeal so held in allowing the appeal of the secure tenant (T), who suffered from schizophrenia and had not taken his medication for some time. In breach of the tenancy agreement T sub-let his flat at which time T ceased to be a secure tenant by reason of s93 HA 85. The LA subsequently gave notice to quit and commenced possession proceedings.

Held : (1) T was disabled within s1 of the DDA 95 as his mental impairment had a substantial effect on his ability to carry out normal day-to-day activities.

(2) The LA's reason for commencing possession proceedings was related to T's disability for the purposes of s24(1)(a) DDA 95; the necessary causal relationship existed in this case. Consequently in bringing possession proceedings the LA unlawfully discriminated against T.

(3) If the obtaining of a possession order would discriminate against a disabled person then it would not be lawful to make the order as s22(3) DDA 95 states that such discriminatory treatment is unlawful. There is no exception for the case of losing security of tenure by reason of s93 HA 85.

(4) The LA did not have to be aware of T's disability and such lack of awareness was no defence to a discrimination claim (s24 DDA 95).

Andrews v Cunningham – 23/07/2007

[2007] EWCA Civ 762

Waller LJ, Wilson LJ, Lawrence Collins LJ

A rent book containing the words “Assured Tenancy” did not amount to a notice pursuant to HA 88 Sch 2A so as to create an assured tenancy.

The Court of Appeal so held in dismissing the appeal of the tenant (T), who had been granted an oral tenancy by the landlord (L). L gave T a rent book with the words “Assured Tenancy” on the cover. Following service of a s.21 notice, T claimed that his tenancy was a non-shorthold tenancy and that the rent book constituted notice under Sch2A para 1 or para 2 HA 88.

Held : The rent book in the instant case was not a notice within para 1 or para 2. The words “Assured Tenancy” was not a statement "that the assured tenancy to which it relates is not to be an assured shorthold tenancy" within para.1(2)(c) because an assured shorthold tenancy was itself a type of assured tenancy. Secondly, the rent book itself confirmed that the expression "Assured Tenancy" on the first page was not confined to non-shorthold tenancies since it stated "if you have an assured tenancy, including an assured shorthold tenancy..." Thirdly, para 1 required service of a written notice, whereas the rent book was intended merely to record payment of rent.

Islington LBC v Honeygan-Green – 25/05/2007

[2007] EWHC 1270 (QB)

Nelson J

A tenant's right to buy ceased to be exercisable following her failure to pay rent and an order for possession of a secured tenancy

The Court so held in allowing an appeal by the LA against an order requiring it to convey a long lease to H. H was a secure tenant who was consistently late in paying her rent. Proceedings were issued and an order for possession, suspended subject to repayment of arrears, was made. H again failed to pay her rent and the LA informed her that her secure tenancy had ended and that she was now a tolerated trespasser.

Held : H's tenancy was terminated by the original order and she was obliged to give up possession of the property. Consequently, her right to buy could not be exercised in accordance with section 121 of the HA 1985. Further, policy reasons required a strict interpretation of this section to the same effect.

Knowsley Housing Trust v Julie White – 02/05/2007

[2007] EWCA Civ 404

Buxton LJ, Longmore LJ, Sir Martin Nourse

An assured tenancy in which a possession order was made but suspended on terms using form N28 was deemed to have expired on the last date for possession, following which the occupant became a tolerated trespasser.

The Court of Appeal so held in dismissing an appeal by the tenant (W) seeking a declaration that she was still an assured tenant of the property. W, an assured tenant, fell into arrears of rent and proceedings were brought for possession. The Judge ordered that the tenant must give up possession on 6 July 2004 but suspended enforcement of the order provided the arrears were repaid. The Judge used the standard county court form N28. W subsequently wished to exercise her right to buy the property which the landlord disputed.

Held : (1) When a court used form N28 to order possession of property held under an assured tenancy but suspended its execution, the tenancy ended on the last date for possession of the property. As with a secure tenancy following Harlow DC v Hall, the suspension related to the enforcement of the order as opposed to postponing the date of possession itself.

(2) The court should adopt the approach in Bristol CC v Hassan; namely order the delivery of possession, but postpone the date for delivery until a date to be fixed so as to protect the assured tenant's rights.

 

Brent LBC v Doughan – 6/2/2007

[2007] EWCA Civ 135

CA (May LJ, Longmore LJ, Smith LJ)

A possession and committal order was refused in spite of annoyance and noise caused by the tenant as the Judge had taken into account all relevant evidence and the risk of repetition

The Court of Appeal so held in dismissing an appeal by the LA in respect of D who had a secure tenancy of property. The LA had been granted an anti-social behaviour injunction against D following shouting and swearing; a suspended order for committal was then made against D following further noise-making, alongside a further injunction. D continued making noise and was alleged to have verbally abused a neighbour. The LA applied for a possession order and a committal order against D. The Judge refused to grant the order for possession on the grounds that, although the noise had occurred and caused annoyance, it was not greatly beyond that which was to be expected from normal urban conditions and that the LA had been at fault in placing the neighbours, who were both sensitive, in the same building. The Judge further refused to grant the committal order on the grounds that the behaviour did not satisfy the criminal standard of proof and the alleged abuse took place outside the area determined by the injunction.

Held : The Judge's findings were unusual but logical and would be upheld. The Judge was entitled to find that, although D had been found to have caused annoyance under the civil standard of proof, he had not done so under the criminal standard. The Judge took into account all relevant factors when arriving at the decision and had specifically considered that the risk of repetition was small.

Anita Fletcher v Sheffield City Council – 12/01/2007

LTL 12/1/2007

Ch D (Lewison J)

When considering whether to vary an order made on the basis of anti-social behaviour, the Court must take into account the likelihood of the behaviour continuing, and the effect this would have on any neighbours

The Court so held in dismissing the appeal of the tenant (T) following the Judge's refusal to vary an order for possession and an anti-social behaviour order made against her. T's neighbour complained of repeated instances of anti-social behaviour, comprising high levels of noise and verbal abuse. Following the LA's intervention, matters failed to improve and possession proceedings were commenced against T, citing her anti-social behaviour as one of the grounds for possession. At the possession hearing, T failed to attend and an order for possession forthwith along with an Anti-Social Behaviour Order (ASBO) were made in her absence. T applied to vary these orders on the basis of her non-attendance; however this was refused by the Judge who found that even if T had attended, her evidence would not have brought about a different result. T appealed this decision.

Held : The Judge had not erred in his decision. When considering whether to postpone or suspend an order made on the basis of anti-social behaviour, the court must take into account the likelihood of the behaviour continuing, and the effect this would have on any neighbours. T's evidence had contained nothing to suggest that her behaviour would change in future; rather she was of the view that she had done nothing wrong and had showed no remorse for her actions. ( Manchester City Council v Higgins (2005) EWCA Civ 1423, followed)

 

Broadway Investments Hackney Ltd v Grant – 20/12/2006

[2006] EWCA Civ 1709

Sir Anthony Clarke MR, Lloyd LJ, Leveson LJ

A lease which obliges the tenant to carry on a profession in part of the premises, whilst permitting another part to be used for residential purposes, amounts to a business tenancy

The Court of Appeal so held in allowing an appeal by the Landlord following a decision that premises were not occupied for business purposes. The tenant had lived in the upper part for the flat for some time before using the lower part for business purposes and contended that the tenancy was an assured tenancy under the HA 1988.

Held : The tenancy was clearly a business tenancy within the meaning of Pt 2 LTA 1954. The lease described itself as a lease for shop premises and required the tenant to use the lower part for business purposes. This was inconsistent with the tenant's assertion that the business use was incidental only.

 

Boyland & Son Ltd v Persons Unknown – 20/12/2006

[2006] EWCA Civ 1860

Ward LJ, Neuberger LJ

A court does not have the power to suspend a possession order against trespassers under s.89 Housing Act 1980

The Court of Appeal so held in refusing the application of travellers to suspend a warrant for possession. The trespassers contended that s.89 HA 1980 allowed the court to give them time to vacate the premises.

Held : Section 89 HA 1980 was concerned with limiting the court's power to postpone possession, where that power already existed. There was no pre-existing power to postpone possession against trespassers; consequently, s.89 could not create a new right. ( Kay v Lambeth LBC (2006) UKHL 10, considered)

Reichman v Beveridge – 13/12/2006

[2006] EWCA Civ 1659

Auld LJ, Rix LJ, Lloyd LJ

A landlord is under no duty to mitigate his loss, when seeking to recover rent arrears, where a tenant abandons the demised premises

The Court of Appeal so held in dismissing the appeal of a tenant (T), of office premises, which had ceased to practice and abandoned the property. The landlord (L) took no steps to terminate the lease and subsequently sued for rent arrears. T argued that L had failed to mitigate its loss by marketing the property or accepting the offer of a prospective tenant.

Held : T's argument would fail. Only where an election to keep a contract open was wholly unreasonable, or damages would be an adequate remedy, would the innocent party be prevented from enforcing his contractual rights to maintain the contract and sue for the contract price.

In this case, L had not acted wholly unreasonably in refusing to take steps to find a new tenant, rather than leaving it to T to find one. Further, damages would not be an adequate remedy for L as, if current market rent had been lower than that reserved by the lease, terminating the lease and re-letting the premises would leave L with a shortfall in rent which it would be unable to recover. If, however, market rent was the same or higher, there was no reason why T could not take steps itself to find an assignee.

Elizabeth Jones v Christos Emmanuel Cleanthi – 12/12/2006

[2006] EWCA Civ 1712

CA (Pill LJ, Jonathan Parker LJ, Sir Peter Gibson LJ)

In the context of the Housing Act 1985 Part XI, a statutory obligation on a landlord to carry out works to a property carries with it a statutory power to do the same and the landlord has a full defence to a claim in nuisance. The performance of such a statutory obligation does not, however, extinguish the tenant's rights once and for all, which could theoretically become exercisable at some point in the future

The Court of appeal so held in dismissing the appeal of the tenant (T) of a flat under a long lease. The lease granted T an easement to use communal refuse bins to the rear of the property and a right of access for this purpose; however, in 1995 the Landlord (L) erected a wall blocking off all access to the bins pursuant to a s.352 HA 1985 notice served on him by the Local Authority with regard to fire safety. T sought a declaration as to the continued existence of her rights under the easement and an injunction preventing L from interfering with these rights.

Held : (1) L had a statutory obligation to carry out the works pursuant to the s.352 notice; accordingly he also had a statutory power to do the same. As such, L committed no actionable wrong against T when erecting the wall, as discharging a statutory obligation is a complete defence to a claim in nuisance ( Department of Transport v North West Water Authority (1984) AC 336). Similarly, there was no breach of the covenant for quiet enjoyment.

(2) Part XI of the HA 1985 does not impliedly authorise or require the expropriation of property rights once and for all; as such, L's actions did not have the effect of extinguishing T's rights once and for all. Although in practical terms the erection of the wall may negate the utility of the right, there is a possibility that during the course of the lease the statutory impediment could be removed and the right would become exercisable once again.

Kensington & Chelsea LBC v Danesh – 05/10/2006

LTL 5/10/2006

CA (Mummery LJ, Jacob LJ, Neuberger LJ)

The word ‘violence' in section 198 of the Housing Act 1996 refers to actual physical violence and not acts or gestures

The Court of appeal so held in allowing the appeal of the Housing Authority. D was granted indefinite leave to remain following an asylum application and was therefore eligible for assistance and housing under HA 1996. Upon his application for assistance under the homelessness provisions, the Authority decided that D had a local connection with Swansea due to his previous residence there; consequently his case was referred to Swansea . D complained that he had been subjected to violence whilst in Swansea and therefore a referral was not appropriate under s.198

Held : The Authority's decision was correct. The word ‘violence' in s.198 of the Act meant actual physical violence and not acts or gestures. The Authority's review of its decision was proper and appropriate.

 

Knowsley Housing Trust v White – 14/09/2006

LTL 6/11/2006

Judge Mackay

An occupier who allegedly breached a suspended possession order could not exercise a right to buy as she was no longer an assured tenant.

The Court so held in refusing an application by the Defendant (D) who had been an assured tenant of a property but had defaulted on payments and against whom a suspended possession order had been made, enforceable if D failed to pay the rent arrears. The landlord alleged that the rent arrears had not been paid but D applied to exercise her right to buy the property in any event.

Held : Section 9 of the Housing Act 1988 made reference to ‘mesne profits', demonstrating that a tenancy could end before the giving up of possession. Accordingly, the tenancy determined prior to the execution of the suspended possession order, and D was therefore not a tenant at the time of her application.

 

Church Commissioners for England v Gisele Meya – 21/06/2006

[2006] EWCA Civ 821

CA (Civ Div) Ward LJ, Smith LJ, Cresswell J

When determining the period of an assured periodic tenancy which had come into existence pursuant to s5(2) Housing Act 1988 following the expiry of a fixed term tenancy, one must look to the last payment of rent the tenant had been obliged to make and then ascertain the period covered by that last payment.

The Court of Appeal so held in allowing the appeal of C who had let the property to M under an assured shorthold tenancy, initially for a fixed term of two years and thereafter renewed. In the terms of the renewal, rent had been expressed as a yearly figure, payable quarterly. Following expiry of the fixed term, C gave M a quarter's notice to quit. The Judge held that the tenancy was annual, and therefore notice was inadequate.

Held : At common law, an annual tenancy would arise by virtue of the fact that rent was expressed to be an annual rent ( Adler v Blackman (1953) 1 QB 146 ). However, s5 HA 1988 governed the current situation and by virtue of s5(3)(d) “the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy”. The key word is ‘last' and requires the court to ascertain first what was the last payment of rent the tenant was obliged to make, and then secondly to ascertain the period covered by that last payment. In the instant case, the last rent payable by M was for a quarterly period and therefore the notice to quit was effective.

Bristol City Council v Hassan; Bristol City Council v Glastonbury – 23/05/2006

[2006] EWCA Civ 656

CA (Civ Div) Brooke LJ (V-P), Dyson LJ, Jacob LJ

A Postponed Possession Order is possible under s.85 of the Housing Act 1985. The Court, when making a possession order, is not obliged to set out a date for possession on the order, but is entitled to set out a date for possession on the basis that this date would be postponed so long as the tenant keeps to the conditions in the order. This has the effect of keeping the tenancy alive and means that the tenant will not automatically become a tolerated trespasser

The Court of Appeal so held in allowing two appeals brought by tenants (T) of Bristol City Council (L) in light of the decision of Harlow DC v Hall. L sought suspended possession orders against T, two secure tenants in arrears with their rent. T, concerned that their status would amount to ‘tolerated trespassers' following the date for possession in the order asked the Court to make an order that T should give up possession on a date to be fixed by application of L. The District Judges decided that they were required to fix a date for possession on the face of the order and made orders in the usual form. T appealed against these decisions

Held:
(1) A Judge is not obliged to set out an absolute date for possession on the face of the order. As such, it is lawful for the judge to make an order which sets out a date for possession but provides that the date will be postponed and the tenancy will continue so long as the conditions set out in the order continue to be satisfied. By these actions, the court would be postponing the date of possession for a fixed period in the first instance and thereafter for such period as the tenant complies with his obligations under the order. This is a natural fit with the wording of s85(2).

(2) However, it is not appropriate to require a further hearing to determine the date for possession due to the attendant expense and delay this may involve. It would be sufficient for possession to be postponed on the terms that, if a landlord wishes a date to be fixed, it must write to the tenant giving details of the current arrears and its intention to request a date to be fixed at least 14 days before making the application. If the tenant does not respond, or if the landlord wishes to apply for a date to be fixed notwithstanding the tenant's response, the landlord will then be at liberty to apply to the court on a "without notice" basis requesting a date to be fixed. This may be determined by the court on the papers without a hearing. With its application the landlord must submit to the court a copy of its letter (and the tenant's response, if any), together with a copy of the rent account since the date of the order postponing possession. Other evidence will seldom be required.

(3) In the present appeals, the judges fettered their discretion too narrowly and the claims would be remitted to the County Court to determine what, if any, terms of postponement of possession were appropriate.

Comment: The Court of Appeal has reacted quickly to concerns following Harlow DC v Hall and given thorough guidance to courts, practitioners and landlords on the preferred form of ‘Postponed possession orders'. The new scheme is to be welcomed insofar as it protects tenants from falling into the ‘tolerated trespasser' trap, while also remaining an efficient process for landlords who may obtain a date for possession without the need for a second hearing if the tenant fails to abide by the conditions. The one regret is that the Judgment fails to provide any hope or clarification of status for the thousands of ‘tenants' who remain ‘tolerated trespassers' following the Harlow DC v Hall decision.

Pirabakaran v Patel & Another – 26/05/2006

[2006] EWCA Civ 685

CA (Civ Div) Wilson LJ, Sir Peter Gibson

Section 2 of the Protection from Eviction Act 1977 preventing re-entry or forfeiture of a lease other than by court proceedings applies to premises let for mixed residential and business purposes.

The Court of Appeal so held in allowing the appeal of a tenant who held a lease over mixed residential and business premises. The Landlord exercised a right of re-entry in relation to the business portion of the premises but the Tenant remained resident in the residential portion of the premises. Following a claim for possession on the basis that the lease had been forfeited, the tenant sought an injunction that the landlord should be restrained from evicting the tenant as he had not acted in accordance with s.2 Protection for Eviction Act 1977.

Held: Section 2 of the 1977 Act refers to premises “let as a dwelling”. It is clear from a reading of this Act and its predecessor, that the phrase should be construed as premises “let wholly or partly as a dwelling”. This interpretation avoids any incompatibility with Article 8 of the ECHR.


LB of Islington v Uckac – 30/03/2006

[2006] EWCA Civ 340

CA (Mummery LJ, Dyson LJ, Sir Charles Mantell)

Ground 5 of HA 1985 is only available where the tenant from whom the possession is sought is the person to whom the tenancy was granted. As the HA 1985 provides a complete code for the termination of a secure tenancy, it is not open to the landlord to seek a rescission of the tenancy under common law rules

The Court of Appeal so held in dismissing the appeal of a Local Authority against a decision that it was not entitled to rescind a tenancy granted to the husband and assigned by him to his wife. The tenants had applied as homeless persons claiming that they had left their previous address due to overcrowding; they were therefore adjudged not to be intentionally homeless and a tenancy was granted to the husband. The LA later sought to rescind the tenancy on the grounds of fraudulent misrepresentation

Held : Ground 5 will not avail a landlord who was induced to grant a tenancy by a fraudulent misrepresentation where the tenancy had been assigned to another person; whether the other person had been party to the fraud has no effect on this rule. Further, a secure tenancy can only be brought to an end by obtaining an order for possession for which the HA 1985 sets out an exhaustive code; consequently, a landlord cannot use common law rules on rescission to bring such a tenancy to an end.


Kay v Lambeth LBC; Price v Leeds CC – 08/03/2006

[2006] UKHL 10

HL (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead , Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond , Lord Brown of Eaton-under-Heywood)

Although the enforcement of a right to possession may be said to interfere with the occupier's rights under Art.8(1) ECHR, the assumption was that the requirements of domestic law regarding possession struck a fair balance and would provide the justification for interference required by Art.8(2)

The House of Lords so held in dismissing the appeals of K & P, who argued that enforcing the landlord's right to possession would infringe their Art.8 rights

Held:
(1) Insofar as Harrow LBC v Qazi [2003] UKHL 43 held that the enforcement of a right to possession could never be compatible with Art.8, this was to be modified in light of Connors v United Kingdom (66746/01) (2005) 40 EHRR 9

(2) Although an occupier may raise an Art.8 defence to possession proceedings in the county court, there is no obligation on the landlord to plead and prove that the order sought was justified. An assumption existed that the requirements of domestic law regarding possession struck a fair balance and would provide the justification for interference required by Art.8(2)

(3) There may, however, be cases of a special and unusual kind where the law entitling the landlord to possession would be incompatible with the occupier's Art.8 rights

Harlow District Council v Hall – 28/02/2006

[2006] EWCA Civ 156

CA (Civ Div) Chadwick LJ, Sir Paul Kennedy, Sir Andrew Morritt C

A Suspended Possession order against a secure tenant under s85(2) Housing Act 1985 was not a remedy against the property of that tenant that was precluded by s258(3) Insolvency Act 1986

The Court of Appeal so held in dismissing the appeal of a tenant (T) who sought to appeal against the refusal to discharge a possession order made in favour of the landlord (L). The possession order provided that T should give up possession on 9 February 2005 but that the order would not be enforced as long as T paid L the outstanding rent arrears. On 10 February 2005 a bankruptcy order was made against T, following which he sought to discharge the earlier possession order.

Held: The possession order required T to give up possession on or before 9 February 2005 whether or not the conditions for payment had been complied with. The possession order merely prevented L from enforcing the order provided T kept to the conditions. As such, the maintenance of the possession order did not constitute a remedy against T's property precluded by s258(3) IA 1986. T was therefore not entitled to discharge the order for possession.

Comment: The significance of this case cannot be understated. The frequently-used suspended possession order (in form N28) does not postpone the date of possession of the property; rather it merely suspends the execution of the order, meaning that possession is ordered from the date specified in the order, but cannot be enforced by the Landlord provided the Tenant keeps to the conditions. As such, any ‘tenants' subject to suspended possession orders are now seen in the eyes of the law as ‘tolerated trespassers'.

 

BASILDON DISTRICT COUNCIL v WAHLEN – 28/3/2006

[2006] EWCA Civ 326

CA (Civ Div) Neuberger LJ, Moses LJ

There is no priority between the two competing claims of: Obtaining Possession of a secure tenancy (pursuant to s82 Housing Act 1985) and the secure tenant's Right to Buy (under s118 HA 1985). The Court should normally hear the two claims together and undertake a balancing exercise between them as to their facts and merits before making a determination.

The Court of Appeal so held in allowing the appeal of a Local Authority against the decision to dismiss the claim for possession and grant an injunction enforcing the tenant's right to buy. W succeeded to his mother's secure tenancy upon her death on 13 June 2004. On 17 August 2004 the LA intimated that it would be seeking possession against W under ground 16 (size of premises). A week later W notified the LA of his wish to exercise his right to buy. On 13 January 2005 W accepted the LA's offer to sell him the property and, on the same date, the LA also made W an offer of suitable alternative accommodation which was refused by W. Thereafter possession proceedings were brought against W, contemporaneous to his arranging with legal advisers to purchase the property. The Judge heard both claims together but concluded that the right to buy provisions took priority as the requirements had been fulfilled prior to the possession proceedings being commenced. On appeal the LA argued that the Judge had failed to balance the competing claims.

Held : The two competing claims were not to be resolved by a race to Judgment (Bristol City Council v Lovell [1996] 1 ALL ER 775). Provided the two claims were arguable, the facts giving rise to the claims and the merits of the claims should be investigated as a whole. A balancing exercise must be undertaken between the two competing claims before deciding which should prevail. The Judge failed to undertake such an exercise and the matter would therefore be remitted to the County Court for a retrial.

 

Manchester City Council v Higgins – 24/11/2005

[2005] EWCA Civ 1423

CA (Civ Div) Ward LJ, Gage LJ 

When considering an order for possession under Ground 2 HA 1985, the court should balance the effect of anti-social behaviour on the tenant's neighbours with the prospects of the behaviour improving. In a severe case of anti-social behaviour, and in the absence of expectation of improvement or remorse, the neighbours' Article 8 ECHR rights should prevail and an immediate possession order granted.

The Court of Appeal so held in allowing the appeal of a Local Authority. The Local Authority (LA) let the property to a secure tenant (H) who lived with her three children. An anti-social behaviour order (ASBO) restraining H's son from acting in an anti-social manner was imposed; however the behaviour continued. The LA sought possession of the property under Ground 2 HA 1985 (Nuisance or behaviour); the Recorder agreed that H was responsible for the acts of her son and that these acts constituted a breach of the tenancy agreement. The Recorder suspended the possession order for 18 months on the basis that the son's behaviour might improve.


Held : The LA was entitled to a possession order taking effect immediately. When considering whether to order possession under Ground 2, the court must decide:

  1. Whether such nuisance and annoyance has occurred;
  2. Whether it is reasonable to order possession; in deciding this it must take into account the effect of anti-social behaviour on the tenant's neighbours (s.85A);
  3. Whether to make a suspended or immediate order for possession.

In the instant case, there was no evidence that the son's behaviour would improve, H, although not solely to blame, was herself without remorse, and the imposition of the ASBO, per se , would not give the neighbours sufficient protection. The Recorder had failed to take into account the effect of the anti-social behaviour on H's neighbours as required by s.85A, and an immediate possession order was necessary and proportionate under Article 8 ECHR to protect the neighbours' rights.


Comment : This case, although explicitly stating it should not be seen as an all-embracing guide, does provide some important general guidance on the thorny issue of seeking possession against tenants whose families cause nuisance and annoyance to neighbours.

When considering the final 2 stages; namely, whether it is reasonable to make such an order and when exercising its discretion whether to suspend the order, this case appears to suggest the courts undertake a balancing exercise between the Article 8 rights of the neighbours and the tenant's right to remain in his/her own home. From the judgment the following principles may be extracted:

  1. All of the factors in the case are relevant, and no one case is likely to involve identical considerations to the next;
  2. The factors to be taken into account at each stage are likely to be the same, or at least overlap. The second stage, however, will put greater emphasis on the future and focus on the best method to protect the neighbours' rights.
  3. The first stage will involve consideration of the extent of the behaviour and effect on neighbours, as well as the responsibility of the tenant.
  4. The second stage will see the courts undertaking an analysis of the likelihood of the behaviour continuing. Failure to heed previous warnings will point in one direction; genuine remorse will point in the other. In either case, the key issue is whether there is a sound basis for the hope that the anti-social behaviour will stop. Without such a basis an immediate order for possession should be made.
  5. An ASBO is clearly a very relevant consideration for both stages.

    Stage 1: That misconduct was serious and persistent enough for the imposition of an ASBO is itself strong, (though not conclusive), evidence that the tenant has forfeited his entitlement to retain possession.

    Stage 2: The effect of the ASBO may either signify that the behaviour has failed to improve because of it (and is therefore unlikely to improve if a suspended order is made), or it may have already served its purpose of restraining future behaviour (and therefore support the making a suspended order.)

 

 

Irontrain Investments Ltd v Ansari – 15/11/2005

Unreported

CA (Civ Div) Auld LJ, Parker LJ, Lloyd LJ

Landlord entitled to claim lost-rental damages against long-leasehold tenant as a result of long-leasehold tenant negligently causing damage to separate flat let out on shorthold tenancy. The shorthold tenants having made a reduced payment of rent to the Landlord on account of the damage.

The Court of Appeal so held in dismissing an appeal by the long-leasehold tenants (T). The Landlord (L) was registered proprietor of property comprising flats; T held an upstairs flat on a long lease. Through the negligence of T, water leaked through the ceiling of the property causing damage to the flat below; this flat was rented out on shorthold tenancy. L was awarded damages for the damage caused to the flat and loss suffered as a result of the shorthold tenants making a reduced payment of rent. In appealing the decision as to loss suffered from reduced payment of rent, T argued that L was not entitled to bring a claim during the period of the shorthold tenancy as only the shorthold tenants themselves could do this; as there was no provision in the shorthold tenant's tenancy agreement entitling them to withhold rent in such circumstances, L could not bring such a claim.

Held : L was entitled to claim damages to recover the lost rent. The deficiency of a provision in the shorthold tenancy entitling the tenants to withhold rent due to the condition of the premises did not disentitle L from bringing the claim. The case is indistinguishable from Ehlmer v Hall (1993) EG 115. Consequently the appeal was dismissed

Circle 33 Housing Trust Ltd v Desmond Ellis – 23/09/2005

[2005] EWCA Civ 1233

CA (Civ Div) Ward LJ, Chadwick LJ, Moore-Bick LJ

A Tenant seeking to set aside a warrant for possession following an eviction had to prove to the court that there had been an abuse of process or oppression in connection with obtaining or executing the warrant.

The Court of Appeal so held in allowing an appeal by Circle 33 Housing Trusts Ltd (L), the landlord of residential property previously let to Mr Ellis (T) as an assured tenant. T was entitled to housing benefit which had previously been paid directly to L; the Housing benefit ceased and T fell into rental arrears. L sought T's assistance in ascertaining his entitlement to housing benefit and, in consequence of T's lack of response, a possession order was obtained and a warrant issued for his eviction. Following his eviction, T made the necessary enquiries and ascertained that he had been entitled to housing benefit which was credited to him; he subsequently sought a dismissal of the execution of the warrant for possession which he contained on appeal, on the grounds that the execution of the warrant had been unjust given the small amount of rent arrears and that L had failed to make enquiries as to why housing benefit had ceased. L appealed.


Held : T was entitled to seek an alternative option to eviction under s9(2) HA 1988. This could effectively be achieved through the courts; however, there had to be a cut-off point after which the landlord would be able to re-let the property in the knowledge that a former tenant can no longer return to the court with proposals for a solution which enables him to resume occupation. The statutory scheme provides that that time comes when eviction has taken place. Thereafter a landlord can re-let in the knowledge that the scheme for protecting the former tenant has run its course. A tenant can on occasions intervene after an eviction; however to take this step the tenant must satisfy the court that there had been an abuse of process or oppression in connection with obtaining or executing the warrant for possession. In the instant case, the decision to set aside the warrant on the basis of oppression was plainly wrong. The judge should have postulated the question as to what would have come of L making further enquiries; the answer to this would have been nothing as T failed to provide required information. As such the judge was wrong to take the view that C was required to do more than it had done. Appeal allowed.

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