Archive for November, 2009

Shop an unlawful sub-tenant, win £500

Published
by
NL
on 30/11/2009
in Housing law - All, Licences and occupiers and Possession
. 10 Comments

The Government has decided to have a campaign against unlawful sub-tenancies of social housing, or rather against the unlawful landlords and tenants both. The estimated figures are that between 50,000 and 200,000 social properties are occupied by unauthorised occupants and, given the utter lack of social housing and a waiting list estimated at at least 1.8 million households, they want something done.

What is to be done is apparently to pay tenants £500 to shop an unauthorised neighbour. M

Local authorities are “expected to target 8,000 tenancy cheats in a first wave of investigations this week across 145 local authorities after a trawl of council records by the Audit Commission”. That leaves anything between 42,000 to 192,000 to deal with. (Is it just me having trouble with the mind boggling imprecision of that estimate? Look I know I owe you some money, I think it is somewhere between £50 and £200… There is no doubt that unlawful sublets are widespread and that in many of those cases, someone is profiting from social housing that they do not require. But an estimate like that is meaningless.)

192,000 at 500 quid a pop to the public spirited neighbours – I make that £96,000,000, probably double with the costs of possession proceedings, so £192,000,000. Hmm. I smell a PR stunt.

But there are further questions – do you only get the £500 if you shop a genuine unlawful occupation, or just someone a bit dodgy? And when do you get it – after successful possession proceedings? With Christmas coming up, the timing of such things is important.

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Each had a wooden horse

Published
by
chief
on 29/11/2009
in Community care, FLW case note, Homeless and Housing law - All
. 1 Comment

R (A) v Croydon & R (M) v Lambeth UKSC [2009] 8

This was an appeal heard by the House of Lords over the course of four days in July, but with judgment delivered by the new Supreme Court.  We reported the Court of Appeal’s judgment here.  At issue was to what extent the courts could review the decision of a local authority that an individual is over the age of 18.  On one view this case turns on a narrow point about construction of the Children Act 1989 and does not really need a lengthy examination on a housing law blog.  I’m going to suggest that there is plenty of juicy stuff in here, albeit obiter, that is worthy of consideration.

The normal order of things is of course for young people to claim to be older than they really are.  Scores of cottage industries churning out fake IDs have depended on this pretty much since the dawn of time.  Claiming to be younger than one really is has long been the preserve of Hollywood actresses, supermodels and footballers of a certain nationality (allegedly).

However, there are certain benefits to being found to be under 18.  It opens the door to accommodation under the 1989 Act.  Someone over 18 is not capable of being a “child in need” under s.20(1) and cannot therefore be entitled to accommodation under that section.  There are other legal consequences that flow from this, see for instance the discussion in R (M) v Hammersmith & Fulham [2008] UKHL 14.

Everyday experience tells us that assessing someone’s age accurately is no easy task.  It will be clear that the decision in these cases is an important one to get right.  Quite apart from the resource implications, which are not insignificant, wrongly classifying a child as an adult, or vice versa, can lead to serious consequences for them.  In this regard it is probably better to exercise any element of doubt in favour of assessing someone as younger rather than older.  As an ILPA report has stated “the risks of wrongly treating children as adults are considerably higher than the other way round.  This is because the children’s system has in-built support and supervision to prevent children from being harmed.  No such safeguards exist in the adult system.”  This was endorsed by the Children’s Commissioner for England before the Court of Appeal in this case.

Facts

The facts of these cases can be very briefly stated.  The appellants arrived as unaccompanied asylum seekers.  They claimed to be under 18, but social workers decided that they were over the age of 18, despite there being some medical evidence in both cases to suggest that they were under 18.  In A’s case there was some documentary evidence too, while in the other an immigration judge had accepted that M was 17 years old.

Issues

There were three issues before the House of Lords, identified by Lady Hale at [13]:

  1. is the duty imposed by s.20(1) owed only to a person who appears to the local authority to be a child, so that their decision can only be challenged on Wednesbury principles, or is the duty owed to any person who in fact is a child, so that a court can determine the issue on the balance of probabilities?
  2. is the issue of whether someone is a child is one of precedent fact to be decided by a court on the balance of probabilities?
  3. does s.20(1) give rise to a civil right so that Art 6 of the ECHR is engaged and, if so, is the process whereby social workers assess age coupled with the availability of JR on Wednesbury principles sufficient compliance with Art 6?

Children Act 1989

It may be helpful to set out a few of the relevant provisions of the 1989 Act here.

Section 17(10):

For the purposes of this Part a child shall be taken to be in need if—
(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c)  he is disabled,
and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

For the purposes of this Part a child shall be taken to be in need if—

(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)  he is disabled,

and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Section 20(1):

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

Section 105(1):

In this Act—

… “child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen

Note that paragraph 16 of Schedule 1 does not apply in this case.

‘Child’ or ‘Child in Need’?

So ‘child’ is defined as “a person under the age of eighteen”.  This is the definition used throughout the Act.  As the appellants argued the definition was not:

[14] … “a person who appears to the local authority to be under the age of eighteen” or “a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen”.  Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read in section 20 which are not there.

The respondent LAs argued (see [20]) that “child in need” was a composite term of art that requires the sorts of professional value judgment that Parliament cannot have intended should be made by the courts.

Lady Hale gave the lead judgment, with which all members of the Court agreed.  In her opinion:

[26] … The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

[28] …In section 20(1) a clear distinction is drawn between the question whether there is a “child in need within their area” and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons.  In section 17(10) a clear distinction is drawn between whether the person is a “child” and whether that child is to be “taken to be” in need within the meaning of the Act.

Lord Hope agreed at [51]:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.

This leads into whether or not the question is one of jurisdictional or precedent fact.  In the Court of Appeal Ward LJ thought this was not a precedent fact case because he viewed the question as whether a person was a “child in need”.  Lady Hale thought that this was looking at the wrong question:

[32] However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.

Lord Hope again agreed:

[53] … The question whether the child is “in need” is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the person’s age, which is an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority.

Therefore, where there is a dispute, the courts can determine an applicant’s age on the balance of probabilities as part of judicial review proceedings.  JR can be adapted to deal with the determination of questions of fact, see R (Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545 (see in the present case Lady Hale at [33] and Lord Hope’s comments on the practical consequences at [54].

Article 6

Although this was enough to deal with the appeal both Lady Hale and Lord Hope went on to consider whether a civil right was being determined and therefore whether Article 6 was engaged.  Although this part of the opinions is strictly obiter, it is still very important and will presumably have an impact in other situations, so all of [35]-[45] and [55]-[65] are worth looking at.  It will become apparent that there was here a slight divergence of opinion on whether Art 6 applied.

Firstly, it will be remembered that in Runa Begum the House of Lords had assumed without deciding that a claim to be provided with accommodation under Part VII of the Housing Act 1996 could give rise to a civil right.  However, there is no Strasbourg case that has gone that far.  The appellants relied on a series of Russian cases (such as Teteriny v Russia and Sypchenko v Russia), which they claimed did establish this proposition.  Both Lady Hale and Lord Hope noted that there did not appear to be any argument on the point in the Russian cases and they did not assist the Court.

Lady Hale concluded at [40] that:

…[I]f a right such as this is a “civil right” at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires.

Lord Hope was prepared to go further.  I won’t break the whole thing down, but after considering the authorities at [55]-[64] he concluded that:

[65] …I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a “civil right” within the meaning of article 6(1) of the Convention.

Given her conclusion Lady Hale went on to consider what Art 6 required, if it was engaged.  She said that:

[44] I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell’s [counsel for A] argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to children’s services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision-making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the “nature of the decision”.

[45] If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6.

Lord Walker acknowledged the force of Lord Hope’s reasoning on Article 6, but preferred to leave the point open.  Lords Scott and Neuberger agreed with Lady Hale.

I think that this result must be right, it is the one that gives effect to what must have been the intention behind the Act.  Make no mistake though, this is going to leave the Admin Court with some difficult decisions to deal with.  If you doubt this then look back at the Guidelines for Paediatricians quoted at [5] in the CA’s judgment, or see the difficulties that Collins J identified at [15]-[32] in the connected case (reported by us here).

While at first blush I find the idea that this is not a civil right quite a difficult one to accept, I must admit that the argument is quite compelling.  This does seem to be the correct interpretation of the Strasbourg case law. It will be interesting to see whether this will affect the appeal in Ali v Birmingham which the Supreme Court finished hearing two days before this judgment was handed down.  In the CA Ward LJ had been comforted by the decision in Ali that JR did provide compliance with the standard required by Art 6.  Apparently both Lord Hope and Lady Hale heard the appeal in that case (it’s shown with Tomlinson as the lead case, but Tomlinson dropped out of proceedings at the CA stage).  Of course the present case was heard before judgment in Crompton v UK, but I’m not sure that that case takes the argument any further.

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An Englishman's room is his castle

Published
by
NL
on 29/11/2009
in FLW case note, Housing law - All and Licences and occupiers
. 0 Comments

Thomas v Director of Public Prosecutions QBD October 23, 2009 (apparently only reported in the Times, although I swear I saw it somewhere else too).

This was an appeal by way of case stated against conviction for obstructing a police officer. Mr Thomas lost his appeal, but along the way, the High Court reached some conclusions about the status of rooms in this accommodation for the homeless.

The question was whether the police, having attended to arrest another occupant, had the power to search the Defendant’s room. The property was a three bed flat. It was used as temporary accommodation on a daily basis. The terms of the individual licences were that each occupant had their own room, with a number and a lock, and could share the communal areas.

The Court held that, as there was no decisive test as to when a place of occupation was divided into separate dwellings, it was to be decided on the facts of each case. On the present facts, the terms of occupation and the physical arrangement indicated that each room was a separate dwelling. The Defendant had a sufficient degree of occupation and privacy to exclude the police. The police therefore had no power to enter the defendant’s room.

Unfortunately for Mr Thomas, the struggle with a police office at issue occurred when he attempted to enter the room of the man the police had come to arrest, so it was not in his room or related to the police searching it. Appeal dismissed.

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Seen anything strange lately?

Published
by
NL
on 27/11/2009
in Various (non-housing)
. 2 Comments

I’ve had an email from a reader who has found that the Nearly Legal URL is redirecting to a spam blog. I can’t replicate this behaviour, but has anyone else seen it? I’m checking to see if we’ve been hacked, but I’d be grateful if anyone could confirm whether they have seen it too – particularly if trying to get to Nearly Legal through a search engine (google, yahoo etc.)

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Child in Need, Indeed

Published
by
chief
on 26/11/2009
in Community care, Homeless and Housing law - All
. 2 Comments

The Supreme Court has handed down judgment in the case of R (A) v Croydon and R (M) v Lambeth [2009] UKSC 8.  This is an important decision about the duty of LAs under s.20(1) of the Children Act 1989 to “provide accommodation for any child in need within their area”.  We will look at this judgment in more detail soon [edit: see here], but for now what you need to know is:

  1. The courts can review whether a person is a “child” for the purposes of the Children Act 1989, this is a separate question to whether they are “in need”;
  2. Ordinary domestic judicial review can be adapted to deal with this where necessary;
  3. If s.20(1) does give rise to a “civil right” for Art 6 purposes it is close to the boundary of that concept (per Baroness Hale); or
  4. The duty of a LA under s.20(1) does not give rise to a “civil right” (per Lord Hope);
  5. If it is a civil right conventional judicial review is enough to comply with Art 6.

The appeal was therefore allowed.  Points 3, 4 and 5 are obiter.

Our report on the Court of Appeal decision is here.

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Mortgage possession defeated by constructive trust

Published
by
Francis Davey
on 25/11/2009
in Housing law - All, Mortgage possession and Trusts and Estoppel
. 6 Comments

An opportunity to indulge in schadenfreude at the expense of a mortgage lender is offered by HSBC v Dyche [2009] EWHC 2954 (Ch) where a claim for possession by a mortgagee was dismissed because the actual occupant of the property was beneficiary under a constructive trust. The decision gives an example of the doctrine of the common intention constructive trust, and touches on the preconditions for overreaching to occur.

I’ll take a slightly different approach to the court and discuss each issue as it arises in the chronology.

the Constructive Trust

In 1976 Mr and Mrs Collelldeval (the C’s) moved into the property, which they held on trust for themselves as joint beneficial tenants. In 1988 Mr C was declared bankrupt (severing the joint beneficial tenancy). Some efforts were made to reclaim the property from the C’s by the trustee in bankruptcy and the Coventry Building Society (who held a charge over the property) but neither succeeded.

At this time (unsurprisingly) the C’s were unable to obtain a mortgage on the property to (for example) discharge the Coventry Building Society mortgage or otherwise deal with their indebtedness. Shortly before his discharge from bankruptcy Mr C appears to have come to the following agreement with those involved.

  • the property would be sold to the C’s’ daughter Amanda-Jane Dyche (the first defendant) and her husband (the D’s) for £25,000 (a price that did not represent the value of the house)
  • the proceeds of sale would be used to discharge the Coventry Building Society’s mortgage, leaving £18,000 to be paid to the trustee (and thus for the benefit of Mr C’s general creditors) and a small surplus for other purposes
  • the D’s would borrow £17,000 from Lloyds’ Bank secured by a mortgage on the property (and borrow a further £8,000 from a friend
  • the C’s would continue to live in the property and pay the D’s instalments to be used to reduce the mortgage indebtedness
  • when the Lloyds’ mortgage was discharged, the property would be re-conveyed to the C’s

The judge believed Mr C’s evidence that this was the deal because he (and his late wife) had continued to beneficially occupy the property. They had made payments to the D’s and some contemporaneous documentation also appeared to support his contention.

His analysis was that the arrangement created a common intention constructive trust with the D’s as trustees and the C’s as beneficiaries. Mr C has (of course) no interest in the property so could not convey it to the D’s but that, thought the judge, was really irrelevant because a constructive trust could be imposed from the moment of conveyance.

What kind of beneficial interest?

Mr C suffered more misfortune because in August 1994 Mrs C died. Mrs D argued that Mr C must have held the property as a beneficial tenant in common, as a result Mrs C’s interest would have fallen into her estate (and one presumes some of it might have come to Mrs D). The judge found no reason to accept that. The C’s had held the property as joint beneficial tenants until 1988 and would have continued to do so but for the bankruptcy.

Overreaching

The D’s divorced some 9 years later. In the divorce it was agreed that Mr D would sell his interest in the property to Mrs D for £5,000. At the same date, Mrs D obtained a mortgage from HSBC. In order to convince them that Mr C had no interest in the property she gave them a copy of an assured shorthold tenancy showing Mr C as a tenant and with a forged version (as the judge found) of his signature.

Mr C got wind of the transfer of the property into Mrs D’s sole name. She told him that she would transfer the property to him once the transfer to her had completed. The judge called this a deception (the transfer had already happened). The HSBC mortgage was used (amongst other things) for Mrs D’s own benefit, although some money was paid to discharge a debt to Lloyds (more on this later).

It was argued by HSBC that Mr C’s interest had been overreached by the sale and mortgage. I cannot see how such an argument can hope to have succeeded since (as any student knows) for a statutory overreaching to be effective the proceeds of sale (or mortgage) must be paid to 2 or more trustees. In this case they were not.

There was some discussion as to whether there were two transactions (transfer to Mrs D, then mortgage) or one (on the principle of Abbey National Building Society v Cann [1991] 1 AC 56, but of course either transaction taken individually or both taken together involved one and one only recipient of the purchase money.

This was not the first basis for the court’s decision. The judge held that in the transfer to Mrs D she was not a good faith purchaser (a requirement of statutory overreaching) since she was acting in breach of trust. As a result that transfer could not overreach Mr C’s interest.

The Result

The end result was that Mr C remained a beneficiary under a trust of the property. Since he was in actual occupation his interest overrode that of HSBC. He won, they lost. As the judge pointed out: they could have made more enquiries but they did not. A textbook example of the operation of overriding interests and one that should not have surprised the bank once the constructive trust point was found in Mr C’s favour.

What about the Lloyds’ mortgage? You remember there was an original loan secured on the property which Mr C was supposed to pay off. There was also another loan, some of which was paid off by the HSBC mortgage. What about subrogation I hear my readers ask? No-one was able to – or had thought to – produce sufficient evidence to make that argument a runner. The court was not able to tell even if the second loan had been secured on the property (in which case the subrogation argument might have been good) or not and it appears that the first loan was paid off before the HSBC mortgage.

An interesting case. I would be interested to know what readers think about the “not a purchaser in good faith” point.

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Homeless reviews and fact finding in the Supreme Court

Published
by
NL
on 23/11/2009
in Homeless and Housing law - All
. 1 Comment

We’ve been told that Ali & Ibrahim v Birmingham City Council (now Ali, Ibrahim and Tomlinson v BCC) was heard in the Supreme Court today, 23 November, and continues tomorrow. Our report on the Court of Appeal judgment ([2008] EWCA 1228) is here. The issue is whether Housing Act 1996 s.202 reviews are Article 6 compliant. Judgment now awaited – this should be significant, either way.

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Succession – the afterlife of the tolerated trespasser

Published
by
NL
on 22/11/2009
in FLW case note, Housing law - All, Succession, Tolerated trespasser and secure-tenancy
. 0 Comments

R (Neville) v London Borough of Wandsworth [2009] EWHC 2405 (Admin) [not on Bailii yet]

This was a renewed application for permission for a Judicial Review of Wandsworth’s refusal of a discretionary succession.

Mr Neville had been living with his mother. Mrs Neville had a secure tenancy from Wandsworth from 1999. In April 2004, a suspended possession order was made against Mrs Neville, which stated that she was to give up possession on 12 May 2004, not to be enforced on conditions. Mrs Neville became a tolerated trespasser.

Mrs Neville died in January 2008. In April 2008 Wandsworth wrote to Mr Neville saying that he had no right to succeed but could apply for a discretionary allocation. Mr Neville requested a discretionary application.

Between this first request and the date of Wandsworth’s decision, Wandsworth’s policy on discretionary allocations changed to include a condition that “the deceased had not lost their security of tenure.”

Mr Neville sought judicial review on grounds that:
1. that his mother was still a secure tenant or at any rate still a tenant at the date of her death;
2. that the council was therefore required to consider the claimant’s application for discretionary allocation;
3. that that application fell to be considered under the policy in force at the date of the application, or at the date of the first letter – but in any event under the old policy rather than the new
policy.

Held:
The date of possession under the April 2004 order was clear. Knowsley HT v White [2008] UKHL 70. applied only to assured tenancies. Austin v Southwark LBC [2009] EWCA Civ 66 provided that the tenancy ended on the date of possession unless restored within the life of the tenant.

It follows that under either version of the policy the claimant had no right to be considered for discretionary allocation, as both versions referred specifically to the death of a tenant.

Even if that was wrong, Mr Neville had failed to provide the information required to decide his application until after the new policy was in force. His application could not be regarded has having been made with a chance of success in the time the old policy was in force.

Further and more importantly “a policy is a policy. It indicates how
decisions are to be made. There is a legitimate expectation only that decisions made will be made under the policy in force at the date of the decision. There is in principle no expectation that a policy will not change and there is no expectation that a decision will be made under any other policy than the one in force at the date of the decision.” This is supported by the decision in Odelola v Secretary of State
for the Home Department [2009] UKHL 25

The letter in April 2008 was not such as could give rise to a legitimate expectation.

Permission refused.

I do wonder about that finding on the policy in force at the date of the decision being the only relevant one. Mr Neville might have been a bit tardy in getting his information in on time, but what if in a different case, the delay was solely the Council’s and in the interim the policy changed?

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Tenancy Deposit – Tiensia revisited

Published
by
NL
on 22/11/2009
in Assured Shorthold tenancy, FLW case note and Housing law - All
. 9 Comments

We reported the County Court hearing of Universal Estates v Tiensia in this post. Since then we have heard of developments in this case, with a tantalising hint of a higher court judgment in the offing.

Tiensia at County Court first instance found that late compliance in protecting the deposit and sending the required information was not ‘complying with the initial requirements of the scheme’ (s.213 HA 2004) because the requirements of the scheme itself, Tenancy Deposit Solutions Limited, required this to be done within 14 days of receiving the deposit (and, apparently, also so did s.213).

Now it turns out that Universal Estates appealed, presumably to the Circuit Judge. The appeal was granted on the basis that the sanctions in s.214(3) and (4) don’t apply where the landlord has complied with the requirements of the scheme, and provided the information to the tenant, by the date of the hearing of the HA 2004 claim.

Apparently the Court of Appeal has granted permission for a second appeal. This means this issue might finally get in front of a court of record.

I know nothing further, so all information gratefully received.

[For all tenancy deposit case posts click here]

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The track to the old Piggery

Published
by
Francis Davey
on 20/11/2009
in Housing law - All
. 2 Comments

Thompson v Bee [2009] EWCA Civ 1212 illustrates a neat point of property law and inheritance that could come up in a variety of circumstances but in this concerns an easement.

In Hamsterley stands Pear Tree House on the main village street. Round the side and to the back of the house runs the Track which leads ultimately to a plot of land known to locals as the Garth where there was at one time a piggery and slaughterhouse. Mr and Mrs Bee now live in the House and Mr Thompson owns the Garth. He wishes to build three houses on the Garth and has the planning permission to do so, but any access to the Garth must be via the Track and the Bees, as is the way in such cases, are adamant the the Track is to be used for no such purpose.

The Bees conceded that without the Track the Garth was landlocked so that there must be an easement of necessity running over the Track but, they said, it was limited to agricultural purposes.

Edith Thompson had owned both the House and the Garth. She disposed of her property by will as follows:

I GIVE to my said Grand-daughter Jane Hodgson my dwellinghouse known as Pear Tree House Hamsterley subject nevertheless to a right of way as existing at the date of my death to the garth at the rear thereof and to Croft Field ….

I GIVE the garth containing one acre together with the piggery and slaughterhouse erected thereon and together with the right of way from Hamsterley main street across the rear of Pear Tree House at all times and for all purposes connected with the said garth to my son George Thompson.

Jane Hodgson married Mr Bee and became Mrs Bee. George Thompson gave the Garth to Stephen Thompson. There might be an argument as to whether the mention of the piggery and slaughterhouse limited the right to agricultural purposes, but the Court of Appeal decided that “for all purposes” meant what it said. So the terms of the will would seem, read alone, to give Mr Thompson the easement he wanted.

Not so said counsel for the Bees, applying pure logic as follows: when Edith Thompson died, all her property was owned by her executors. No easements could have come into being at that time because you cannot own an easement over your own property. Then the executors made an assent to Mrs Bee of the house subject to “all rights of way and easements affecting the same.” but of course there was no easement over the Track at that stage, so Mrs Bee took the property absent any easement. The assent to Mr Thompson was also said to be “together with all rights of way and easements affecting the same.” but by then it was too late since no easement had been reserved in the assent to Mrs Bee. QED.

The Court of Appeal thought otherwise. They held that the will and the assents should be read together. Section 36(2) Administration of Estates Act 1925 provides that (unless there is a contrary intention expressed) assents take effect from the date of death, what is known as the “relation back” and so they should be read together with the terms of the will. The will and the assents are, in substance, one transaction. The unfortunate (if logical) conclusion that the order of assents could make a difference to the existence of easements was thus avoided.

Mr Thompson’s ambitions were ultimately thwarted. Although it was found that an easement over the Track to the Garth had been granted that was not limited as to the nature of its use, the Court of appeal found that access for 3 houses would be excessive and made a declaration to that effect.

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