Andrew Brookes, Partner
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Possession
a. Tolerated Trespassers
2006 started with Harlow DC v Hall [2006] EWCA Civ 156
The form of N28 possession order used since 15 October 2001 had the effect of making all occupiers subject to a suspended possession order since that date tolerated trespassers, whether or not they had complied with the terms of the order.
Events moved quite rapidly with alternative forms of orders being proposed. However, the solution came in May with:
Bristol CC v Glastonbury
Bristol CC v Hassan [2006] EWCA Civ 656
The Court of Appeal did away with tolerated trespassers at a stroke by finding there was nothing in Housing Act 1985 s85 that fettered the discretion of a judge to make such order for postponement of possession as he thought fit and a judge was not obliged to set out a date for possession on the face of his order.
This was followed by a new form N28A from 3 July 2006.
Remaining issues:
1. 1982-1993. The tenancy ceases as soon as there is any breach of the conditions on which the date for possession was postponed. It is necessary for the defendant to make a HA 1985 s85 application to postpone the date of possession and therefore revive the tenancy.
2. 1993-2001. The effect of this template was not considered by the Court of Appeal. The best advice is to make an application to postpone the date of possession. It is arguable that the only obligation on the tenant is to pay the specified sums for the period specified in paragraph 1 of the Order, normally 28 days. Once this date has passed, there is only an installment order for the judgment debt. The risk of eviction has passed. The critical issue is whether the tenant complied with the conditions for the initial 28 day period for which the order was postponed.
3. What to do about the 100,000 plus tolerated trespassers who remain from the period after 15 October 2001? Court has an inherent power to vary its own orders to make the meaning and intention of the court clear CPR PD40b Para 4.5. Alternatively, retrospectively apply to postpone the date for possession (but beware pitfalls eg joint tenants)
Can Assured Tenants become tolerated trespassers? Until recently, all the case law has been about secure tenants and s82. HA 1988 s7(7) makes express provision that the statutory tenancy will end on the date that the possession order takes effect. There is no similar provision in respect of contractual periodic tenancies. But now, see Knowsley Housing Trust v Julie White (2006) Liverpool CC 14/9/06: tolerated trespasser regime applies to Assured Tenants.
Practice Points. Make applications to revive where appropriate. Make the application even on warrant suspensions. Joint tenants problem? At the very least, the court should convert the SPO to a PPO. In difficult cases, bring the attention of the court to the variety of orders it can now make.
b. Rent increases - defending claims for possession against assured tenants.
White v Riverside Housing Association Ltd [2005] EWCA Civ 1385
Challenging rent increases is the new frontier in rent possession cases against assured tenants.
Riverside’s tenancy agreement contained a clause permitting the rent to be raised, in accordance with a specified formula, with effect from 1 June each year. Riverside purported to increase the rent from April 2001 instead of June 2001 and again in April the following years. The court found that Riverside could not rely on the April 2001 rent increase, nor on the rent increases in the following years.
Just like Harlow DC v Hall, this has had an unintended knock on effect. Thousands of possession orders obtained against assured tenants may have been wrongly made.
This is very important for practitioners defending possession proceedings on the grounds of rent arrears. Practitioners should routinely put RSLs to proof regarding both the validity and service of all s13 Notices issued since the inception of the tenancy.
See Ian Loveland “Rent lawfully due in possession proceedings: the issues explained” October 2006 Legal Action magazine.
This case has caused some shock amongst RSLs and is to be appealed to the House of Lords.
Practice points: Put RSLs to proof of rent increases – don’t admit arrears. Particularly useful for Ground 8 cases – can they prove the arrears at the hearing?.
c. Other grounds for possession
London Borough of Islington v Uckac [2006] EWCA Civ 340
Islington granted Mr and Mrs Uckac a tenancy. Mr Uckac assigned to Mrs Uckac. Islington then sought possession on Ground 5- obtaining tenancy by deception. The Court of Appeal determined that Ground 5 is only available against the current tenant, not a predecessor in title. Islington were not able to claim rescission on the grounds of fraudulent misrepresentation because HA 85 s82 specifies the only ways in which a landlord can bring a secure tenancy to an end. NB – contrast the Court of Appeal’s approach in Martin v Medina Housing Association Limited (see below)
Birmingham City Council v Walker [2006] EWCA Civ 815
Mr and Mrs Walker became council tenants in 1965. In 1969 Mr Walker died and Mrs Walker became the sole contractual tenant by right of survivorship. In February 2004 Mrs Walker died and Mr Walker junior claimed to succeed. The Council resisted this and sought possession on the basis that there could not be a second succession. The Court of Appeal determined that the provisions of the HA 1980 were not retrospective. There could not have been any earlier succession under a secure tenancy because there was no secure tenancy at the time of Mr Walker senior’s death.
Any “successions” before 1980 should not be taken into account in deciding whether an occupier is entitled to succeed under HA 1985.
Lambeth LBC v Vandra [2005] EWCA Civ 1801
Subletting, grounds for possession. The Court of Appeal set out how the court would approach these cases. It is for the landlord to prove that the tenant is absent. If the landlord does prove this, it is up to the tenant to show a physical presence in the premises and an intention to return.
R (Chelfat) v Tower Hamlets LBC [2006] EWHC 313
Introductory Tenancy regime. A tenant's application for a review under s128 does not require the tenant to complete any particular form or make such a request in a particular manner. s129(6) is silent on the consequences of a failure to carry out a review within the time specified. Whether such a failure would be fatal to a possession claim would depend on the facts.
Practice Point: Tenants should be given the benefit of the doubt as to whether they requested a review. The second part of this judgment seems very harsh given that procedural safeguards are the only real protection for introductory tenants subject to possession proceedings.
d. Possession – Assured Shorthold Tenancies
Church Commissioners for England v Meya [2006] EWCA Civ 821
The Church Commissioners granted Ms Meya a two year fixed term tenancy which was renewed for a further year. Rent was expressed to be payable quarterly. Ms Meya argued that the period of her statutory periodic tenancy (HA 1988 s5(2)) was a year and therefore that possession proceedings had been brought prematurely. However, the Court of Appeal agreed with the landlord that what mattered was the period for which the rent was payable, which in Ms Meya’s case was quarterly.
e. Anti-Social Behaviour
Manchester City Council v Higgins [2005] EWCA Civ 1423
Anti-Social Behaviour - the Court of Appeal's hard line continues. Ms Higgins’ son harassed a neighbour and three sons who all suffered from a disability. Manchester CC first obtained undertakings from Mrs Higgins and an ASBO against the son. They then sought possession and the Recorder made an SPO. The Court of Appeal substituted an outright order in place of the suspended order. The Court examined in particular the interaction of an ASBO and possession proceedings. On the one hand, in certain circumstances the ASBO could be seen as restraining behaviour sufficiently. However, in other circumstances it could indicate behaviour so serious as to make an outright order inevitable.
Knowsley Housing Trust v McMullen [2006] EWCA Civ 539
Knowsley sought possession on Grounds 12, 13 and 14 of HA 1988 Schedule 2. Almost all of the nuisance was caused by the Defendant’s son who was subject to an ASBO. It was agreed that the Defendant herself was an immature and vulnerable person. An SPO was made and the Defendant appealed. The appeal was dismissed but the Court of Appeal varied the order to provide that the Claimant should apply on notice before seeking a warrant. An outright or suspended order can be made on the basis that a person living with the tenant has been guilty of nuisance. The existence of an ASBO is a relevant matter but an ASBO doesn’t prevent a possession order being made. Given the existence of the ASBO and the Defendant’s disability, the order was varied to provide that the Claimant should apply on notice before seeking a warrant.
Practice Points: Don’t forget the Disability Discrimination Act. The court has the option of making an SPO but imposing a condition on the landlord that they must apply on notice for any warrant
Washington Housing Company Ltd v Morson [2005] EWHC 3407 (CHY)
Another possession claim based on HA 1988 Sch 2 grounds 12 and 14 or alternatively demotion. Permission to appeal was refused. The judge was entitled to rely on the evidence, although it was all hearsay, being complaint forms filled in by local residents, mainly anonymously.
f. Closure Orders
Chief Constable of Merseyside Police v Harrison [2006] EWHC 1106 (Admin)
On an application for a closure order under ASBA s2, the civil standard of proof, namely the balance of probabilites, applies. Contrast the standard of proof where an anti-social behaviour order is sought, in such circumstances the criminal standard of proof applies.
Also R(Cleary) v Highbury Corner Magistrates Court [2006] EWHC 1869 (Admin) dealing with adjournments to applications for closure orders
Possession-other Practice Points: The “Protocol for possession claims based on rent arrears” came into force on 2 October 2006. Practitioners should scrutinize closely the box on the N5 form that asks the landlord what steps they have taken to recover the arrears. That box should always plead that the landlord has complied with the protocol and particularize how.
Long Leaseholders
Continental Property Ventures v White & White [2006] 16 EG 148
This important Lands Tribunal case demonstrates how the Leasehold Valuation Tribunal (LVT) is developing its jurisdiction following the expansion of its jurisdiction brought about by the Commonhold & Leasehold Reform Act 2002.
Mr and Mrs White challenged the reasonableness of service charges levied by their freeholder. They argued the charge was substantially increased by the landlord’s delay, and that the landlord was in breach of covenant to repair. The Lands Tribunal found that, because the LVT now had the jurisdiction to find what service charge was “payable”, this could include making awards of damages for disrepair to set off against the service charge claimed.
The Continental case now allows the LVT to consider claims for disrepair by long leaseholders in the context of service charge disputes.
This is truly a step towards the LVT becoming the housing court of the future, which is what some would like to see.
Practice Points: Is the LVT the nascent Housing Court? See “The LVT – Two Steps Closer to being the Housing Court?” by Justin Bates [2006] JHL 68.
The Decent Homes standard has had a big impact on council leaseholders who are often faced with huge service charge demands. This is bound to result in an increased number of applications to the LVT and also to the County Court.
Disrepair damages
Earle v Charalambous [2006] EWCA Civ 1090
This is the Court of Appeal revisiting the issue of damages in housing disrepair cases. It is only the third time in ten years that the Court of Appeal has examined this issue.
The tenant, a long leaseholder, achieved damages of £13,500 for a period of 35 months where he remained in occupation and a further £10,000 for a period of 21 months when the property was uninhabitable. That figure was based on the market rental value of the flat.
Practice Points: Earle is a significant advance in the battle to increase general damages in housing disrepair cases, particularly for disrepair to long leasehold properties.
Practitioners should always check the amount of the rent. Local authorities often charge very high rents for temporary accommodation. That could mean disrepair of only a few months duration could attract over £1,000 in damages.
Rights of occupiers of temporary accommodation – a new battleground
One of the many advantages for homeless applicants of the abolition of bed & breakfast, accommodation should have been increased security of tenure. However, this has not always proved to be the case.
Desnousse v Newham [2006] EWCA Civ 547
Ms Desnousse applied as homeless and was placed in self-contained accommodation pursuant to s188. The accomodation was owned by Veni Properties Ltd but managed by Paddington Churches Housing Association on behalf of Newham. By a majority, the CA decided that Mohammed v Manek and Kensington & Chelsea RLBC (1995) 27 HLR 439, CA applied. s3 of the 1977 Act does not apply to licenses provided under s188, (or s190). The majority (Lloyd LJ dissenting) held that the removal of the protection of s3 was proportionate (Human Rights Act s3, Art 8 ECHR). Local authorities should not have to take proceedings to evict applicants housed pending enquiries. The court reserved its position as to whether tenancies of such temporary accommodation were also covered by Manek and excluded from the 1977 Act.
Haringey LBC v Hickey [2006] EWCA Civ 373
HA 1985 Sch. 1 para. 6 allows local authorities to grant non-secure tenancies for homeless applicants, where the accommodation is owned by a private sector head landlord. In 1996 a Mr Patel leased a flat to Haringey, who in turn sub-let it to Ms Hickey on an agreement headed “Private Sector Leasing Scheme: form for non-secure sub-tenancy”. Ms Hickey successfully argued that in fact she had been granted a secure tenancy. That is because the terms of the head lease between Mr Patel and Haringey did not “include provision for the lessor to obtain vacant possession from the landlord on the expiry of a specified period or when required by the lessor”. It was not sufficient for the lease simply to provide (as it did) that at “the end or sooner determination of the term” the council would yield up the premises “with vacant possession” to the landlord.
Practice Points:
1. Can you give your client some valuable extra time in temporary accommodation?
2. Check the head lease;
3. Bed & Breakfast annex schemes – tenancy or licence?
Right to Buy - litigation continues over a valuable right for secure tenants.
Martin v Medina Housing Association Ltd [2006] EWCA Civ 367
Tenant not able to complete right to buy based on notice served in 1989. Although s122(3) states that a withdrawal of the right to buy has to be by notice in writing (s122(3)) the court still had jurisdiction to assert the elementary principles of common law and equity. In this case, it would be inequitable for the tenant to rely on the 1989 notice.
Copping v Surrey CC [2005] EWCA Civ 1604
The boundaries of the RTB explored. Although HA 1985 s118 grants a right to buy, it is expressly subject to the conditions in Part V. Section 138 expressly requires the the right to be established before the duty to convey arises. Mr Copping had only established his right in 2001 following earlier proceedings, and therefore the valuation date was 2001 not 1991.
Terry v Tower Hamlets LBC [2005] EWHC 2783 (QB)
For further information email Andrew Brookes or call 020 7940 4000.
