But it caught my eye. To be fair, one cannot always tell from a short judgment of this kind exactly what happened, but it gives the impression that landlord and tenant law was, at best, misunderstood. So it seemed like a golden opportunity to set the record straight.

The defendant’s father and mother had lived in the property under an assured tenancy. Sadly, the father died. The mother succeeded under s.17 of the Housing Act 1988. Later on her son, the defendant, came to live with her and look after her. The mother died. The landlord eventually decided that the defendant would not be allowed to carry on living in the property and served a notice to quit which duly expired. They claimed possession on the basis that the son was a trespasser.

But why? Assured tenancies are not magic. They have some magical properties given to them by the Housing Act 1988 but underneath they are still perfectly normal tenancies which means they are an estate in land capable of being inherited.

This means that when the defendant’s mother died, her tenancy would pass under her will or intestacy. If the mother had not been a successor, the magic of s17 might have come in to play, but she was so it did not. From the facts of the case it seems overwhelmingly likely that the son was her heir. He would then inherit the tenancy and become the tenant.

As an aside there are some subtleties here which I am not about to delve in to, such as the nature of a heir’s rights under an intestacy and the role of the Public Trustee. Readers will be familiar with the and all the usual rules about giving notice after a tenant has died.

It seems likely that the defendant was a tenant of the property and, since he lived there, almost certainly an assured tenant. You cannot end an assured tenancy by giving notice to quit. It may be that the district judge inquired into this possibility and the matter was dealt with but not mentioned in the judgment, but it really ought to have been.

The right way to evict an heir in these circumstances is of course to use Ground 7 of Schedule 2.

The claimants appear to have been too excited to wait until then (or, more likely, but less poetically, they wanted to avoid the expense of a trial) and so appealed to the Court of Appeal. On Wednesday Stanley Burnton LJ refused permission.

What is interesting is that he made it quite clear that, even though this was a second appeal, if Bean J had made his decision following the a trial of the claim, the Lord Justice would have given permission regardless of the outcome. The Court of Appeal are as interested in resolving this question as the rest of us.

However proprietary estoppel is fact sensitive stuff. The Lord Justice noted that the claim has a trial window in April/May 2012. There was therefore nothing to be gained by having the Court of Appeal resolve the point before then. It might be that the defendant failed to establish the factual basis of her claim, in which case there would be no need for an appeal – and we would all remain in the dark. It would also be better for any prospective appeal to be dealt with on the basis of facts found at trial rather than on pleadings.

We will keep you posted.

The background is sadly familiar. The late Mr Pilkington formed a relationship with Mrs Masterson. They lived together in a house as joint legal and beneficial tenants. Their relationship broke down and Mrs Masterson (together with a daughter from a previous marriage) moved out.

Since he was 16 years senior to Mrs Masterson, it is not surprising that it was his (or his legal advisor’s) mind that first turned to severance of the joint tenancy. His solicitors attempted to do so by notice under that section familiar to all law students: s36(2) of the Law of Property Act 1925. They were unsuccessful.

In the following year, Mr Pilkington’s health began to decline. He had an incurable degenerative dementia and surgery for bowel cancer. At age 78 there was clearly a very real fear that he would soon die. Nothing further was done about severing the join tenancy – quite possibly because Mr Pilkington and Mrs Masterson had a rapprochement. Although she did not return to live with him, she made regular visits to assist in his care.

Some 4 years later and Mr Pilkington’s health had deteriorated to the point where he was moved to private residential care. The local council met the cost of his care but would require repayment at a later date. Everyone assumed that that cost would be borne out of Mr Pilkington’s share of the property. Unfortunately, Mr Pilkington now lacked mental capacity.

Mr Pilkington’s daughter, Mrs Quigley enters the story. She proposed that she become deputy for Mr Pilkington. Mrs Masterson disagreed and felt she was in a better position. After contested litigation in the Court of Protection, Mrs Quigley was appointed deputy, but her authority did not extend to sale of the home which was left to Mrs Masterson.

Shortly after Mrs Quigley’s appointment, but before she had exercised her authority in any way (at least any way of which the court was aware), Mr Pilkington died.

Mrs Quigley, as Mr Pilkington’s personal representative, and Mrs Masterson were then left to argue whether there had been severance of the joint tenancy. The argument ended up before a a Deputy Adjudicator for the Land Registry, who found for Mrs Masterson. On Mrs Quigley’s appeal, Henderson J was left to consider the question.

The Deputy Adjudicator had found that earlier efforts to sever the joint tenancy by notice had been ineffective (as I recorded in my summary). That point was not contested on appeal. Mrs Quigley made two arguments: first that the conduct by her of proceedings before the Court of Protection indicated that both parties considered that the joint tenancy had been severed. Both parties had referred to Mr Pilkington’s interest as being “50%” of the property.

This argument failed. Henderson J found that Mrs Quigley was not Mr Pilkington’s deputy during the Court of Protection litigation and so her actions could not be attributed to him. There was no conduct on his behalf on which a finding of severance by conduct could be based.

But, said Mrs Quigley, after being appointed deputy I did nothing at all, which indicates that I adopted all that previous conduct in severing the joint tenancy. I would have had to take some definite action to deny my previous conduct which I did not. Nonsense, thought Henderson J. That sort of argument would be a recipe for confusion. When would the severance take place? Not immediately because Mrs Quigley would be bound to consider the point in exercise of her proper duty as deputy and perhaps take legal advice. There was, in any case, no evidence she had done either.

Mrs Quigley’s second argument was that Mrs Masterson’s communications to the Court of Protection – in her application and witness statement – both very clearly indicated that she treated Mr Pilkington’s share as 50%. That, said Mrs Quigley, was a section 36 notice if ever there was one.

This was countered by an interesting argument: these notices were served on Mrs Quigley not Mr Pilkington. There could not have been service. Even if service on Mrs Quigley did become service on Mr Pilkington when she took office as deputy, her power to act did not arise until she had put up the relevant security, which she had not done before Mr Pilkington’s death.

Henderson J thought the second argument worked. Mrs Masterson’s statements did serve as a notice of severance which became effective when Mrs Quigley became deputy. The fact that she was at that stage not permitted to exercise her powers did not matter: she was at least able to passively receive notices directed at Mr Pilkington.

Although the fact of this case may seem a little convoluted, in my experience this kind of interaction of capacity and communication is common in severance disputes. Sadly it is in just this kind of situation where concerns about severance arise.

Mew v Tristmire concerned whether or not two “houseboats” were “dwelling houses let as separate dwellings” as required in section 1 of the Housing Act 1988 in order for them to be assured tenancies.

The “houseboats” appear to have been converted WWII landing craft that were, in the event, not used in the D-Day invasion. Both rested on wooden platforms so that they did not rise and fall with the tide. Both could be lifted off the platforms and removed, although one, “Emily” was fixed to an additional structure that had been added some 5 years previously and which would be damaged or destroyed if “Emily” was moved.

The court took the “houseboats” status as “dwelling houses” depended on their forming a part of the land, which in turn depended on their degree of annexation. Readers may be familiar with the considerable case law that has built up around the question of annexation and the fertile source of argument to which it can give rise, particular in the context of business tenancies.

The court considered, on the one hand, Elitestone v Morris, where a bungalow had been constructed in situ. The House of Lords held that, although it merely rested on some concrete pillars by its own weight — and so was not strictly speaking “fixed” to the land — it could only be removed by demolition and thus was properly speaking a part of the land.

On the other hand was Chelsea Yacht & Boat Co Ltd v Pope where a houseboat that was moored to the banks of the Thames (and a pontoon) could be untied (and the mains services disconnected) and floated away was found to be chattel that did not form a part of the realty.

The court considered that the condition of the houseboats at the time they were installed was relevant. At that time, on the findings of the first instance judge, the houseboats were capable of being floated away, even though now they had deteriorated to a point where removal would mean their destruction. As a result the case was more like Chelsea Yacht than Elitestone. The houseboats continued to be chattels and so could not be dwelling houses. The tenants of the houses could not, therefore be assured tenancies.

• Where there is an agreement permitting a mobile home to be stationed on land which does not have planning permission for use as a caravan site (and therefore does not have a site licence), the subsequent granting of permission does not bring that agreement within the Mobile Homes Act 1983.
• The 1983 Act only applies to agreements which are exclusively, or at any rate mainly, limited to granting rights falling within section 1 of the Act, so that where a large area of land is let for agricultural purposes permitting the tenant to live on the land in a caravan, the 1983 Act does not apply.

An area of “rough pasture” was granted to the original tenant under an oral weekly tenancy for a horse livery and stabling business. This was back in 1979. Much happened subsequently: the tenant brought a caravan onto the land, which later became his home. The defendant, his successor in title, came to live with him and the caravan became her home.

Up to this time the use of the land as a place on which to live in a caravan was unlawful. Miss Wyatt realised this in an unsuccessful application for housing benefit and so applied for and obtained a certificate of lawful use in 2002 which backdated to 2001. In 2007 Miss Wyatt “disposed of” the caravan which it seems had become rather decrepit and brought a new, slightly larger, mobile home onto the site. The judge at trial found that this had been done without the freeholder’s consent. In 2009, the claimant freeholder served a notice to quit and brought possession proceedings.

Alas, for the claimant, she started proceedings before the notice to quit had expired, so the claim was dismissed. However the judge decided, at trial, that the Mobile Homes Act 1983 did not apply to the defendant’s home and she was therefore not protected by the security of tenure provisions in that act. More on the way that the judge came to this decision at the end, but to continue the story, the defendant appealed.

A recap of the law (for those who aren’t quite as interested in caravan sites as myself): the Caravan Sites and Control of Development Act 1960 regulates caravan sites and requires that any site has a site licence. The Caravan Sites Act 1968 introduces the idea of a variety of caravan site known as a “protected site” and protects occupiers of such a site by giving them certain protections and rights. These rights are considerably extended by the Mobile Homes Act 1984 which relies on the 1968 Act for its definition of “protected site”.

Now, the definition of “protected site” in section 1 of the 1968 Act is:

For the purposes of this Part of this Act a protected site is any land in respect of which a site licence is required under Part I of the Caravan Sites and Control of Development Act 1960 or would be so required if paragraph 11 of Schedule 1 to that Act (exemption of land occupied by local authorities) were omitted, not being land in respect of which the relevant planning permission or site licence—

(a) is expressed to be granted for holiday use only; or

(b)is otherwise so expressed or subject to such conditions that there are times of the year when no caravan may be stationed on the land for human habitation.

A naive and literal reading of that definition would suggest that it would apply to any site where a site licence is required, whether or not there actually is a site licence and whether or not such a licence could be obtained as a result of the lack of planning permission. The Divisional Court thought so in Hooper v. Eaglestone (1977) 34 P. & C.R. 311 — a criminal prosecution — but the Court of Appeal thought otherwise in Balthasar v Mullane (1985) 17 H.L.R. 561 where Glidewell LJ decided, on policy grounds, that a site without the relevant planning permission, was not a protected site. He agreed with an earlier decision of the Court of Appeal in National By-Products Ltd. v. Brice (1983) 84 L.G.R. 652 that where there was planning permission but no site licence because the landowner had failed to apply for (or for the renewal of) a licence, the site was protected otherwise a landowner could take advantage of his own wrongdoing. Balthasar v Mullane was followed by the Court of Appeal again in Adams v Watkins (1990) 22 H.L.R. 107.

What if a site licence was obtained after the agreement for occupation? The Master of the Rolls rehearsed a number of difficulties that would arise if an agreement could move in and out of protection under the 1983. Many of these objections will be familiar to readers who have followed the ghastly tale of tenancy deposit protection under the Housing Act 2004. For example, the 1983 imposes certain obligations on the landowner which arise within a certain time of the start of the agreement. How does that or could that work sensibly if the agreement was made years before protection arose?

Parenthetically both the Master of the Rolls and Arden LJ accepted that section 1(8) which states that “Any reference … above to the making of an agreement to which this Act applies includes a reference to any variation of an agreement by virtue of which the agreement becomes one to which this Act applies.” might create similar difficulties. If an agreement was varied, then protection could arise long after the agreement was made. It is possible, without doing too much violence to the text and in accordance with Parliament’s presumed intention, to read the various timely obligations as applying from the date the variation was made.

The defendant argued that the change in circumstances (the obtaining of planning permission) was a variation in the agreement and hence brought it within protection. This was rejected as being artificial by the Master of the Rolls. While tough on the defendant it is hard to see how what happened in 2002/1 could be described as a variation.

I raise (only to dismiss) the following possibility that might appear in the comments: since the original agreement was an oral weekly tenancy, there was an implied renewal at the end of each period and therefore a new agreement, so that at some point in 2001 a new weekly tenancy would have arisen which was within the terms of the 1983 Act. Such a point has certainly been made in the debate on the Housing Act 2004.

Orthodoxy is against such a line of argument. As those familiar with Hammersmith and Fulham v Monk will recall, a periodic tenancy is a so-called “springing interest”. It continues until the landlord or tenant (or one of them as the hapless Mr Monk discovered) decides that the “springing will stop”. Unless and until the tenancy ends, there is only one tenancy which just grows and grows.

This idea goes back to the seventh edition of of Matthew Bacon’s New Abridgement of the Law printed in 1832, which incorporated the views of Jeffrey Gilbert a former Chief Baron of the Exchequer. The idea appears to have been widely accepted — for example it was argued by counsel in Cardwell v Lucas (1836) 2 Meeson and Welsby 111 150 E.R. 691 and upheld by yhe Court of Exchequer in Gandy v Jubber (1865) 5 Best and Smith 15 122 E.R. 914. Although Gandy v Jubber was settled before the judgment was pronounced it has been treated as good authority in subsequent cases, including by the House of Lords in Monk.

So that’s that then.

The other ground of Miss Wyatt’s appeal was the finding by the judge that the 1983 Act did not apply because of the extent of the land let to her. The Court of Appeal agreed. Again the Master of the Rolls pointed out the difficulties that would ensue if a large area of land let for purposes that went well beyond the residential occupation of a caravan could be protected by the 1983 Act. There was, he thought, no way of giving protection to the caravan but not the whole of the land and protection of the breadth could not have been Parliament’s intention. Miss Wyatt would lose on that point as well.

Two further points of interest:

• The trial judge had made his decision on the applicability of the 1983 Act on a basis that had not been put forward by the claimant and on which the defendant was not given a proper opportunity to comment and which may (there was some argument about this) not have been mentioned in the hearing. In paragraphs 13-19 the Master of the Rolls sets out some fairly clear and robust guidelines on what should be done in circumstances where a judge wishes “to decide a case on the basis of a point which was not argued, or in a way, or to an extent, which is more favourable to a party than the case which that party advanced in court.” Very useful material to show to a judge who goes off on a frolic of their own.
• In paragraph 80, Arden LJ leaves open the possibility of an article 8 challenge if any future claim for possession were made. Watch this space.

While the point in issue was whether Slough could rely on a defence of qualified privilege against Mrs Clift’s claim, I think the decision has wider implications and is therefore relevant to housing practice. The court’s reasoning on Article 8 of the ECHR should be familiar to housing lawyers. In the court’s view, the publication of damaging allegations about Mrs Clift interfered with her rights under Article 8(1) and the council was therefore bound not to pass those allegations on unless in doing so Article 8(2) was satisfied – which it manifestly was not in Mrs Clift’s case. Via some relatively complex reasoning related to the ways in which qualified privilege has been analysed by the courts, this meant the council could not raise the defence and so their appeal was lost.

Two things of interest arise. First, Slough tried to argue that it was impermissible to rely on human rights to condition the way in which an existing common law right of action developed. The court rejected this point, there was no suggestion of changing the way in which the defence qualified privilege operated, but rather applying the pre-existing definition of qualified privilege without change to the facts, which included Slough’s duties as a public body, meant that it could not be relied on. Similar arguments may arise in future concerning other defences raised by a public body.

Second, in advising council tenants one does run across situations where councils have foolishly, incompetently or sadly in some cases maliciously (in the non-technical sense) passed on private and damaging information about tenants, their families or associates to a far wider audience than was strictly necessary. Mrs Clift’s case establishes quite clearly that this is likely to be in breach of the individual’s article 8 rights and that a simple plea of administrative impracticality (one of Slough’s argument’s amount to asking how would they check that the circulation list was relevant?) is unlikely to be enough to satisfy Article 8(2).

By the way the court took the view that general public law principles and the Data Protection Act 1998 were each likely to result in the same conclusion – that there should not have been such wide disclosure – even in the absence of Article 8.

Mr Burtenshaw was the sole legal owner of a home. He intended to move into it with his partner Ms Thomas and their children, but their new home needed renovation. Contractors were hired and work started on the property. Ms Thomas visited the property to supervise work “almost every day” and “at last every other day”.

The plan was to raise further funds for renovation by a bridging loan which would turn into a normal residential mortgage in due course from Clydesdale Bank. The loan would pay off the existing mortgage on the property and leave cash to fund the work.

The Deed of Mortgage was then signed and, subsequently, the mortgage was registered.

Alas, all was not well. Mr Burtenshaw’s business failed and he was unable to keep up payments on the mortgage (he later leaves the story as a bankrupt). The bank sought possession. Ms Thomas did not attend the hearing. She asked for an adjournment on the basis of her health. The judge refused this, considered the evidence and found for the bank. She appealed, though this appeal was treated as an application to set aside the judge’s decision under CPR 39.3(3). At first instance the application to set aside was refused, but she obtained permission to appeal that refusal to the High Court.

The court was therefore concerned not with the substantive case, but whether Ms Thomas had a reasonable prospect of success. Her case was that, although Mr Burtenshaw was the registered proprietor of the property, she had an interest (described as being under a common intention constructive trust). For the purposes of the appeal that was conceded by the bank.

Now the bank had registered the mortgage. By section 29 of the Land Registration Act 2002, the mortgage therefore takes priority over any unregistered interest (the unregistered interested would be “postponed” to the mortgage as the act puts it). Ms Thomas’s interest was not of course registered.

But section 29 does not apply in certain circumstances, one of which, relied on by Ms Thomas, is where the unregistered interest overrides the registered disposition under schedule 3 of the act. Ms Thomas relied on paragraph 2:

2 An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for –

…

(c) an interest -

(i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and

(ii) of which the person to whom the disposition is made does not have actual knowledge at the time;…”

Ms Thomas claimed that her supervisory visits meant she was in actual occupation and that that occupation would have been obvious on a reasonably careful inspection of the property and also (belt and braces) the bank had actual knowledge of her interest.

The court found that Ms Thomas did have a reasonable prospect of demonstrating that she was in actual occupation. Unsurprisingly, in my view, in the light of Lord Justice Nichols famous dictum in Lloyds Bank Plc v Rosset [1989] 1 Ch 350 (a case with many similar features):

“There was, I repeat, physical presence on the property by the wife and her agent of the nature, and to the extent, that one would expect of an occupier having regard to the then state of the property: namely, the presence involved in actually carrying out the renovation necessary to make the house fit for residential use.”

Rossett concerned the provisions in the Land Registration Act 1925 that preceded the 2002 act, but the phrase “actual occupation” is clearly intended to be the same in the latter.

On “actual knowledge”, the court found that the bank did know that Mr Burtenshaw intended to move into the property with Ms Thomas and that, prior to that occupation, the property needed renovation. The court’s view was that the bank needed to have actual knowledge of the factual basis for Ms Thomas’s interest, rather than (as the bank argued) actual knowledge of the interest. If the latter view was correct, a bank with a mistaken view of the law would not have actual knowledge which the court thought could not be right.

On paragraph 2(c)(i) the court found that what was needed was that a reasonable inspection would discover the occupation. The inspection need not discover the extent or degree of the occupation (and thus realise that it was “actual occupation”), but on the other hand, there was no requirement that a reasonable enquiry be carried out.

As I read it — and the decision is a little obscure on this point — this means that a situation such as that in Kingsnorth Finance v Tizard [1986] 1 WLR 783 (unregistered conveyancing case where the husband went to great efforts to hide the fact that his wife lived at the property so that it was not apparent on an inspection, but the court held that the bank had been put on enquiry because it knew that the husband was married but had not enquired as to where she lived) would be decided differently today. If anyone has any views on this I would be interested to hear them.

This is an important question because the Mobile Homes Act 1983 grants a degree of security of tenure to residential occupiers of mobile homes who are entitled to station their homes on a protected site.

Have Village was operated by licence under the Caravan Sites and Control of Development Act 1960 which licence required that the mobile homes be occupied only between 1st March and 30 November, at weekends and for 10 days over Christmas.

The court found that the restriction on occupation in the licence meant that the site was excluded from protection by s1(2) of the Caravan Sites Act 1968 which excludes a site where the licence:

is otherwise so expressed or subject to such conditions that there are times of the year when no caravan may be stationed on the land for human habitation.

According to Garden Court’s Housing Law Bulletin that part of the decision has been given permission to appeal by the Court of Appeal.

The High Court decision covered some interesting ground, including the meaning of the word “caravan” and the application of proprietary estoppel and is an interesting read, but those parts of the decision appear not to be the subject of the permission.

I look forward to the Court of Appeal decision with interest.

Patel were the landlords and K&J the tenants. K&J were in breach of their lease in two ways. First a sub-tenant of one of the flats had been using the flat for prostitution — the type example of “immoral user” see Rugby School (Governors) v Tannahill [1935] 1 KB 87.

Second, Mr Albright, “the person behind K&J”, wished to reduce his involvement in the restaurant business. Unfortunately for him, the lease contained a usual covenant against assignment, underletting or parting with or sharing possession. A rather complicated arrangement was made with Mr Albright’s restaurant manager, a Mr Leale, whereby he would run (though not have voting shares in) a company called MPC which would operate the restaurant business from the premises, with some support from Mr Albright as a consultant.

In my experience this sort of arrangement intended to bypass covenants against assignment etc are often made. In this case, the Court of Appeal found that because the agreement required MPC to keep the business open at certain times, it impliedly gave MPC a right to enter the premises to do so and thus was a sharing of possession, though not a subletting. Thus the arrangement was in breach of covenant.

The story unfolded as follows. In early November 2007, the police telephoned Mr Albright to warn him that one of the flats was being used for prostitution. His uncontradicted evidence is that he was told to write to him about it, but they did not. In late February 2008 the police served notices on Mr Albright and his landlord informing them that the prostitution was taking place and requiring them to take immediate action to remedy the situation.

The landlord’s response on 28 February was to serve a s146 notice, relying on a breach of a covenant in the lease against immoral user and stating that the breach was incapable of remedy. In my view this was a mistake. Stating that a breach is incapable of remedy in a s146 notice risks a court later finding that the breach was capable of remedy and therefore that the notice was invalid. Nor is there ever a good reason to do so. It is simple enough to require that the breach be remedied “if it is capable of remedy” — an approach endorsed in Glass v Kencakes [1966] 1 QB 611.

K&J did then evict the offending tenant by 6 March (we are not told how he achieved this relatively speedy eviction) and started a claim for relief from forfeiture on 18 March 2008.

Things carried on going badly for Mr Albright, for around this time Mr Leale (the restaurant manager) told the landlord that K&J had sublet the restaurant to him. Mr Albright got wind of this and on 29 March changed the locks on the restaurant so as to exclude Mr Leale (and MPC) on the ground that their telling the landlord was a breach of a confidentiality clause in their agreement.

On 31 March the landlords started proceedings for possession, based on their first s146 notice.

By 2 April MPC were back in the property on the back of an interim injunction, so the landlords served another s146 notice on the grounds of breaches of both the covenant against immoral user and the covenant against assignment etc. This time they had the good sense to say that both breaches were capable of remedy. They began a second claim for possession on 9 May 2008.

(So that is 2 claims for possession, one for relief from forfeiture and parallel chancery proceedings concerning MPC’s right to access the premises — lawyers at least were doing well out of all this).

This involved history raised a number of issues. First, was the immoral user capable of remedy so that the original s146 notice was invalid?

There is a long line of authority, including Tannahill that where a tenant is themselves in breach of a covenant against immoral user, that breach is never capable of remedy. But where a tenant is unaware of immoral user by a sub-tenant and takes prompt steps to stop it and seek forfeiture of the sub-lease (or otherwise evict the sub-tenant).

I do wonder how long this absolute line can be sustained. The courts have increasingly accepted that whether or not a covenant is remediable is a matter of fact and so a pragmatic approach should be taken. It is hard to see why immoral user should be so special as to be invariably incapable of remedy, especially because the effect on a landlord of immoral use does not depend on whether a tenant or a sub-tenant carried it out. Lord Justice Neuberger (as he then was) commented that “it is not entirely easy to justify this” (Akici v LR Butlin [2005] EWCA Civ 1296).

So, the question was whether Mr Alrbight should have taken action when the police telephoned him in November, or whether he was entitled to wait until they wrote to him (as they promised he would). The Court of Appeal found that he had not acted promptly; the breach was incapable of remedy and so the first s146 notice was valid. This is, in my view, a clear indication of how speedily a tenant must act against the immoral user of a subtenant.

The other issue – sharing possession – is interesting to me in that it established that the arrangements of the kind between MPC and Mr Albright are a sharing of possession, but I do not expect that will come up in many residential property situations.

The Court of Appeal also reaffirmed that the normal terms of relief will include a requirement that the tenant pay the landlord’s costs on an indemnity basis.

K&J had argued that a by the way statement made by Lord Templeman in Billson v Residential Apartments Ltd (No 1) [1992] 1 AC 494 to the effect that “I consider that the practice of ordering indemnity costs as a condition of granting relief is ripe for reconsideration” should be followed in preference to Chadwick LJ’s statement of principle in Bland v Ingrams Estates Ltd (No 2) [2001] EWCA Civ 1088 at paragraph 14:

“Third, the object of the court when granting relief is to put the lessor (as well as the lessee) back in the position in which he would have been if there had been no forfeiture – see Egerton v Jones [1939] 2 KB 702, 706. It is this principle which underlies the practice of requiring the applicant, as a term of relief, to pay the costs properly incurred by the lessor in connection with the re-entry and the proceedings for relief. Accordingly, the applicant will normally be required to pay the lessor’s costs of the forfeiture proceedings, save in so far as those costs have been increased by the lessor’s opposition to the grant of relief, upon appropriate terms – see Howard v Fanshawe [1895] 2 Ch 581, 592, and Abbey National Building Society v Maybeech Ltd and another [1985] Ch 190, 206. Prima facie, the costs which the applicant will be required to pay to the lessor as a term of obtaining relief will be assessed on an indemnity basis; if it were otherwise the lessor would not obtain the indemnity against proper expenses to which he is entitled – see Egerton v Jones [1939] 2 KB 702, 710. But, to the extent that costs have been increased by the lessor’s unnecessary opposition to the grant of relief, the normal rules apply: the lessor will normally be ordered to pay the applicant’s costs on the standard basis, and the applicant will be able to set those costs off against what he would otherwise be required to pay to the lessor as a term of obtaining relief from forfeiture.”

The Court of Appeal’s view was that Lord Templeman had not properly appreciated the fact that indemnity costs were the subject of taxation by the court, so that a tenant was not entirely at the mercy of the landlord and could challenge the costs bill to a limited extent.

K&J were required to pay the landlord’s costs on an indemnity basis subject to the exclusion of one item.

An oddity of the case is that by the time of the appeal hearing, the landlord and tenant had agreed a deed of surrender so that relief was no longer possible, let alone sought. The deed stated that it: “is entirely without prejudice to the parties’ position in the Proceedings [i.e. the claim and the appeal] and is not intended to affect the parties’ position in the Proceedings”. The Court of Appeal felt that meant they could not take the deed into account in deciding how to dispose of the appeal, and in particular could not entertain K&J’s argument that they should not have to pay costs on an indemnity basis, there being no requirement for relief by that stage.

A case perhaps of over clever drafting perhaps?

The story (so we are told) is that a hotelier moved out of his home for a week while it was being renovated and, coming back, found that it was occupied by squatters. He is now unable to access his own home and his possessions. The newspaper indignantly reports his misery and unhappiness — leading to many commenters on the online edition calling the law an ass or words to that effect.

First, it seems to me that the hotelier is a “displaced residential occupier”, who can certainly use force to enter his own home and reasonable force to remove the trespassers. Even if he is not, he (with solicitors instructed according to the report) can quickly produce evidence that he is a “protected intending occupier”, permitting him the same rights as a displaced residential occupier.

The police are quoted as saying it was a “civil issue” — showing that the Metropolitan Police are as clueless about laws that protect freeholders as they are about those that protect tenants from unlawful eviction (the civil/criminal line is obviously drawn in a different place in PoliceLand than it is by the rest of the world — theft and “looking at me in a funny way” or “being in possession of a camera in a public place” falling on the one side, with unlawful eviction with a knife being on the other).

Of course if the displaced Mr Gupta is able to demonstrate his status as either a displaced residential occupier or a protected intending occupier of the premises then the squatters are committing a criminal offence contrary to section 7 of the Criminal Law Act 1977 and the Police could (and really should) arrest them for it.

The same article has the legal gem: “If squatters manage to stay in a home for 12 years, it effectively becomes theirs.” I suppose fact checking is quite dead now.