Archive for the 'Possession' Category

Suspended possession orders and insolvency: request for info

Published
by
NL
on 30/07/2010
in Housing law - All, Possession, Tolerated trespasser, assured-tenancy and secure-tenancy
. 0 Comments

We’ve been told that on 29 July 2010, the tenant appellant in Godfrey v A2 Dominion North Ltd was granted permission to appeal. Quite what permission has been given is less clear – our source says Court of Appeal, but the case was elsewhere listed as being before a High Court judge. Can anyone clear this up?

[Edit: confirmed by Hardwicke Chambers as being Court of Appeal, permission by Rimer LJ]

What is at issue is whether a suspended possession order should be made when the rent arrears have been included in a debt relief order pursuant to the Insolvency Act.

The tenant apparently argued that “a ‘remedy in regard of debt’ in the terms of the Insolvency Act cannot include a suspended possession order as the purpose of an SPO is to enable payment of the arrears”. Further the existence of a debt relief order must be relevant to the question of whether it is reasonable to make a possession order in the first place. These were not arguments raised in Harlow v Hall, which should be distinguished on its own facts as:

  • it is based on the concept of the tolerated trespasser which is no longer applicable
  • the comments on a possession order post-bankruptcy were obiter
  • Harlow v Hall pre-dated the rent arrears pre-action protocol

Obviously we like to know more about this case – transcript anyone?

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Lets all move to….Parliament Square

Published
by
David Smith
on 25/07/2010
in FLW case note, Housing law - All and Possession
. 0 Comments

Hall & Ors v Mayor of London (On Behalf of the Greater London Authority) [2010] EWCA Civ 817 (16 July 2010)

The case report on the appeal between the Mayor of London and various occupiers of Parliament Square Gardens has appeared on BAILII.

For those who don’t live in or near London, Parliament Square Gardens (PSG) is the area of grass surrounded by statues and walkway which sits between the Houses of Parliament, Westminster Abbey and the new Supreme Court building. It has often been a site for protest but has been the subject of long-term occupation by a number of protesters. The background to these protests was set out by Mr Justice Griffith Williams in his original High Court judgement which was the subject of this appeal.

3. On 1 May 2010, four separate groups said to represent the Four Horsemen of the Apocalypse and which had formed up at different locations across London arrived and set up a camp which they named their ‘Democracy Village’. Their then stated intention was to remain until 6 May 2010, the date of the General Election but they have continued to occupy PSG and (on the evidence of a number of the defendants …) have every intention to do so for the foreseeable future.
4. Brian Haw (the second defendant) has been camping lawfully since 2001 on a pavement on the eastern side of PSG – a part of the highway controlled by Westminster City Council. He was joined some years later by Barbara Tucker (the third defendant). They have been conducting their own protest for Love, Peace, Justice for All. They and those associated with them are in no way a part of the Democracy Village.
5. The defendants who are a part of the Democracy Village are demonstrating variously in respect of a number of causes – these include the war in Afghanistan, the war in Iraq, genocide, war crimes and world wide environmental issues.

Mr Justice Griffith William made an order for possession against all but 2 of the Defendants and also made an injunction order against all but 2 Defendants requiring them to remove tents and other structures from the grassed area of PSG, not to erect any further structure, to leave PSG and not to organise or take part in further assemblies there that do not have the consent of the Mayor.

Permission to appeal was sought from the Court of Appeal and this was heard at the same time as the appeal itself before the Master of the Rolls (with LJ Arden and LJ Stanley Burnton) who gave the leading decision. There were five issues at appeal which were clearly and succinctly set out by the MR:

First, whether the trial below was fair – whether it complied with article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). Secondly, whether the claim for possession was properly constituted. Thirdly, whether the order for possession and the injunction complied with articles 10 and 11 of the Convention in terms of proportionality. Fourthly, whether an injunction was a permissible remedy in the light of section 385 and the Byelaws. Fifthly, there are issues concerning costs.

The first issue, that of the fairness of the trial, concerned the suggestion that the possession hearing had been listed very quickly. However, it was not listed sooner than the minimum time specified in the CPR nor even close to that minimum time. It was also the case that there had been two prior directions hearings so the possession proceedings were not in any way a surprise to the Defendants. While it was true that the speed had meant that some of the Defendants had been unable to obtain publicly funded representation, all the issues had been sufficiently aired by the six barristers who were retained in the matter and so no significant disadvantage was caused to those Defendants who were forced to represent themselves. The final point on this issue was that the issues being raised by the Defendants were of prime importance and were ones which attracted the protection of the ECHR. This was not doubted by the Court but they did not consider it of much relevance to the matter at hand.

The most interesting area of appeal concerns the right of the Mayor to seek a possession order at all. This point was based around the fact that the Mayor does not actually enjoy a legal estate in the land of PSG, although the Court was clear that he has control over it. This control is awarded by section 384 of the Greater London Authority Act 1999. Subsection 1 states:

(1) The land comprised in the site of the central garden of Parliament Square (which, at the passing of this Act, is vested in the Secretary of State for Culture, Media and Sport) is by this subsection transferred to and vested in Her Majesty as part of the hereditary possessions and revenues of Her Majesty.

The argument put forward for the Defendants was that the Mayor, while statutorily empowered to control PSG has no right to commence possession proceedings. This was well-summarised by the Court in the following terms:

(i) a claim for possession of land is the modern equivalent of a claim for ejectment (see the discussion in Secretary of State for the Environment v Meier [2009] UKSC 11; [2009] 1 WLR 2780, paragraphs 6-7, 26-33, and 59-61); (ii) a claim for ejectment (as opposed to a claim for an injunction in trespass) could only be maintained by someone who could establish a legal estate in the land (see e.g. per Lord Mansfield CJ, and Aston and Willes JJ in Roe v Harvey (1769) 4 Burr 2484, 2487, 2488 and 2489 respectively, and per Bayley J in Harper v Charlesworth (1825) 4 B & C 574, 589); and (iii) it would represent an unprincipled departure, fraught with inconsistencies and unforeseeable problems and conundrums, to depart from this rule (as the Supreme Court of New South Wales decided in Georgeski v Owners Corporation [2004] NSWSC 1096)

The Court pointed out that this argument was inconsistent with the reasoning in Manchester Airport PLC v Dutton [2000] 1 QB 133 but it was argued by the Defendant’s that that decision had been made without the benefit of the authority they cited and also that their view that possession should be bound by the same principles as ejectment was supported by the Lords in their ruling in Meier.
For the Mayor it was argued that the prior possession of the mayor was sufficient to establish his prior seisin or right to title. However, the presumption of prior seisin is rebuttable by evidence (see Asher v Whitlock (1865) LR 1 QB 1) and the presumption was clearly rebutted by the statutory basis on which the mayor controlled PSG.

The Court accepted that there was force in the Defendants’ arguments but was also of the view that the “modern law relating to possession claims should not be shackled by the arcane and archaic rules relating to ejectment, and, in particular, that it should develop and adapt to accommodate a claim by anyone entitled to use and control, effectively amounting to possession, of the land in question”. As it was the decision of the MR in Meier which most substantially supported the ejectment/possession equation the Defendant’s it was fairly fatal at this stage that the MR felt that his opinion was “concerned with a very different aspect of a possession order from that raised here”. Ultimately the Court ruled that the powers granted to the Mayor included an implied right to seek possession and that it “would be scarcely consistent with the powers and duties conferred on the Mayor … if he could be denied the ability to obtain possession of PSG.”

Considering the issue of Articles 10 and 11 it was held by the Court that this case was not similar to Kay or Doherty as no balancing act had been carried out during the passing of the legislation. It was therefore necessary to carry out this balance in this case. This largely came down to whether or not the current protesters prevented other people protesting in PSG. The Court viewed the issue on a wider basis and considered the rights of people to express themselves simply by walking on PSG. On this basis it took the view that the protesters had been protesting for 70 days and had made their point in that time and that they should now go.

The last main issue was whether the High Court should have granted an injunction when there were already criminal penalties available against trespassers on PSG. Following the decision in B & Q [1984] AC 754, 714J it was in order to grant an injunction where it was clear that the criminal penalties available were insufficient to deter continued breaches.

Mr Haw made a separate series of arguments. He distinguished himself from the other Defendants and pointed out that his occupancy of PSG was at a much lower level. Ultimately the Court decided to remit the issue of articles 10 and 11 back to the High Court for reconsideration. This was largely on the basis that being forced to pitch his tent on the pavement (which was not the subject of these proceedings) would have a negative effect on Mr Haw’s health. The Court did express doubt as to whether he would be able to convince the High Court not to make a further order against him.

The issues of costs are not really relevant for our purposes.

In summary permission to appeal and the appeal was granted for Mr Haw and his associates (Ms Tucker, Sweet and Hall) and the matter was remitted to the High Court for reconsideration articles 10 and 11. The other appeals were dismissed.

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Well, You Needn’t*

Published
by
NL
on 15/07/2010
in FLW case note, Housing law - All, Possession and assured-tenancy
. 3 Comments

Poplar Housing and Regeneration Community Housing Association Limited (Poplar Harca) v Stephen Howe [2010] EWHC 1745 (QB) [on Latwel. Not on Bailii yet]

When we reported on Lana Wilson v London Borough of Harrow [2010] EWHC 1574 (QB) two weeks ago, we noted that another application for permission to appeal on the issue of the rule in LB of Hammersmith and Fulham v Monk [1992] 1 AC 478 was underway. And here it is. There is also an appeal on a dismissed public law defence, which raises a number of issues.

Briefly, Mr Howe and his then wife were joint secure tenants of Tower Hamlets. The property was transferred to Poplar Harca, at which point Mr & Mrs Howe became joint assured tenants. In May 2006, after the Howe’s separated, Mrs Howe applied as homeless to Tower Hamlets and then signed a ‘termination of tenancy’ form, so that she could be offered another property.

Poplar Harca (PH) have a common housing register and common allocation policy with Tower Hamlets. PH applied to the Council’s housing management panel for Mr Howe to be rehoused. He received four offers of accommodation, which he rejected as unsuitable. Only the fourth was in issue here. Mr H refused the fourth property because PH refused a to pay a moving allowance, payable to people downsizing from a larger property, although it waived rent arrears. PH then sought possession on the basis of the termination of the joint tenancy by Mrs H.

At first instance Mr H argued the incompatibility of the rule in Monk with Art 8 and a public law defence. Both were dismissed. Mr H sought permission to appeal to the High Court.

i) Monk and Incompatibility.
The argument advanced by Mr H on incompatibility was broadly similar to that in Wilson. However, Mr H also argued the recent run of ECtHR case law (Cosi v Croatia Application 28261/06, Paulic v Croatia Application 3572/06 [links to our reports]) and that this marked a move beyond the House of Lords decision in Harrow LBC v Qazi (2004) 1 AC 983, such that it was seriously arguable that the rule was incompatible despite Qazi.

This, frankly, didn’t get any further that Wilson had. Mrs Justice Rafferty noted the Croatian cases, and the observation of Cranston J in Coombes v Waltham Forest LBC [2010] EWHC 666 Admin that

There is an obvious conflict between the Strasbourg jurisprudence and our own

However, following Husband v Solihull MBC [2009] EWHC 3673 (Admin) and Wandsworth LBC v Dixon [2009] EWHC 27 [links to our reports], Qazi was held to be solid precdent that the rule in Monk was compatible with Art 8. The importance of national precedent in such situations, per Lord Bingham in Kay v LB Lambeth [2006] UKHL 10, was crucial.

Permission on this ground refused.

ii) Public law defence
[To be honest, it is hard to make out arguments from this judgment. Some arguments seem to be mentioned, but no decision is reached on them, while other arguments are clearly decided upon. As I'm reliant on the judgment here, I'm doubtful that the arguments of either party are accurately reproduced.]

Mr H argued that:

  • The Notice to Quit was unlawful because by enabling Mrs H to execute the NTQ, PH failed to consider Mr H’s interest in his home when other options were available.
  • The offer was unsuitable in consequence of Mr H being unable to afford his removal expenses.
  • PH had not given Mr H the opportunity for a review of their decision that the offered property was suitable.
  • Mr H was entitled to removal expenses under PH’s cash incentive scheme, which PH had refused to pay.

PH apparently refused to concede that it was a public authority as it was not bound by Part VI or VII Housing Act 1996. It maintained this position despite Weaver and despite it having a common housing register and common allocation policy with Tower Hamlets. There is no finding on this point in the judgment, but it appears to proceed on the basis that PH were a public authority.

PH’s further argument was that Mr H’s argument meant that any offer would be unsuitable unless it paid removal expenses, which payment it was not in law required to make, because Mr H was not a tenant following the NTQ.

Mr H argued that his case had been considered by a Tower Hamlets Housing Management Panel and as he had ‘scored’ extenuating social need or emergency priority, accommodation had to be both reasonable and suitable as PH were acting in concert with the Local Authority and utilising Part VI Housing Act 1996. Further, he was therefore entitled to a review of a decision that an offer was suitable and reasonable if he notified PH that it wasn’t.

On the ‘Larger to Smaller Cash incentive’ scheme, Mr H submitted that PH had misled itself by applying a literal construction of the terms of the scheme, but accepted that the scheme only applied to tenants.

Held:
On the issue of suitability, the Judge at first instance was right to find that the incentive scheme did not apply to Mr H as he was no longer a tenant. Mr H was not acting reasonably in rejecting the offer as unsuitable because he could not afford the moving expenses. PH was not acting unreasonably or disproportionately in refusing to assist with the removal expenses and PH had taken his medical condition into account in the offer made.

For these reasons the first instance Judge was right to dismiss the public law defences. Permission to appeal refused.

Comment
The conclusion to this judgment may seem a little cursory in this note, but then it does in the judgment. There seem to be arguments acknowledged as raised, for instance on the unlawfulness of the NTQ or the offer being made under Part VI and therefore subject to review, which are not addressed in findings. This somewhat frustrating as it is hard to tell how the arguments were considered and why rejected. One presumes pressure of time on a permission hearing was involved.

As we noted before, the rule in Monk will have to go to the Supreme Court and/or ECtHR. The rumour is that permisson is to be sought in Wilson is to appeal to the Court of Appeal and presumably on the basis that a further appeal to the SC will be needed. Howe has reached its end in the domestic courts. If we hear anything further on it, we’ll pass it on.

*For anyone wondering, the title is indeed Monk related.

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Delays, Public Law Defences and Suspended Orders

Published
by
NL
on 11/07/2010
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 3 Comments

London Borough of Brent v Corcoran & Anor [2010] EWCA Civ 774

While we wait for the Supreme Court decision in Pinnock, which was heard last week, it seems that the Court of Appeal is determined to set practical limits on the operation of the public law defence. In this case, Corcoran and O’Donnell – the Appellants, were granted permission to appeal, but:

The only reason we granted permission is that we considered it important to make it absolutely clear that public law attacks of the technical and over-theoretical sort advanced here have no merit whatsoever in this sort of case.

The case also raises issues about the Court’s discretion to suspend a possession order under s.4 of the Caravan Sites Act 1968 and the effect of delays in the Court process.

Brief Facts
Mrs Corcoran and Mrs O’Donnell were each the licencee of a plot on a travellers’ site in Wembley. The licences contained conditions that prohibited:

  • parking more than 1 vehicle and 1 caravan on the pitch
  • relatives and guests bringing caravans onto the site without written permission from the Council
  • using the pitch for taking, selling or supplying drugs and receiving, storing or selling stolen goods, or harassing or causing distress/ inconvenience to others, including the Council’s staff, by themselves or anyone living with or visiting them.

On 14 March 2008, the police carried out a raid on the site. Mrs Corcoran’s pitch had a large mobile home and a small white caravan occupied by Eddie Corcoran (Mrs Corcoran’s son) on it. Mrs O’Donnell’s pitch had a large mobile home, a cream caravan and a small white caravan. The Police found:
i) Pitch 1 (Corcoran):
Small white caravan/adjoining wall: 37 wraps of cocaine, an air rifle and a knuckle duster;
ii) Pitch 11 (O’Donnell):
Small white caravan: 28g cocaine, scales, other drug paraphernalia, 3 lumps believed to be crack cocaine, weapons including a replica MP5 machine gun, knuckle duster, knives and machetes and 15 national insurance cards, fifty death and birth certificates, various documents in the names of individuals unconnected with the pitch, 3 satellite navigation systems (one of which was reported stolen) and in excess of £1000 cash.
Eddie Corcoran was arrested and convicted of possession with intent to supply. Patrick O’Donnell (Mrs O’Donnell’s nephew) was arrested but not charged.

On 31 March 2008, Brent served notice terminating the licences and on 1 May 2008, Brent brought possession proceedings. At hearing on 16 May 2008, HHJ Copley made orders for possession but adjourned hearing on the issue of whether the possession orders should be suspended. The Defendants’ argument that there were public law defences to a possession order were rejected. No written order was drawn up at the hearing and no case management directions given. In the event, no determination was made on the suspension or otherwise of the possession orders until September 2009, 15 months later. In the meantime, in November 2008, there was an incident in which two of Brent’s officers on the site were shouted at and told to leave the site by a group of residents. Mrs C and O’D denied taking part, but the Judge later found that they had, albeit not playing a major part.

At the hearing in September 2009, HHJ Copley suspended both possession orders for a year on the basis of undertakings not to permit Eddie Corcoran or Patrick O’Donnell on the pitches and not to interfere with or harass Brent’s officers in exercising site management functions.

Mrs C & O’D appealed on the dismissal of their defences. Brent cross-appealed on the Judge’s decision to suspend the orders.

Held: (Jacob LJ)
On the public law defences.
The question was whether Brent’s decisions were such that no reasonable council could have arrived at them. The Appellants argued that Brent had failed to take into account its duties arising under s.71 of the Race Relations Act 1976 as amended and s.49A of the Disability Discrimination Act 1995 as amended. It was true that Brent did not consider its s.71 duties when deciding to terminate the licences, but this was not a circumstance in which the s.71 duty arose.

The section does not mean that whenever a relevant statutory body such as Brent takes any decision whatever it must give advance consideration to issues of race discrimination. There are decisions which clearly have nothing to do with race, still less racial discrimination.

Here there were severe breaches of the licences, involving criminality, which had nothing to do with race or a particular racial group:

it is entirely far-fetched to suppose that a local authority should think that racial discrimination considerations could come into play. Indeed if anything quite the opposite. If Brent had decided not to serve a notice to terminate the licence on the ground of race it would most likely have been exercising unlawful positive racial discrimination – treating a particular ethnic minority more favourably than other ethnic groups.

This conclusion also applies to the decision to continue and seek outright possession orders.

The s.49 DDA duty was only argued in respect of Mrs O’D, on the basis that a draft witness statement set out that her aged and terminally ill mother was living on the ptich.

Again the Judge thought nothing of this defence and rightly so. It is by no means obvious that the consequences of clear and serious breaches of the terms of a licence can be escaped by reason of the presence of such a person on the site. I can see how the problem would need to be considered, as simple matter of humanity irrespective of any Convention or statutory duty, when considering whether execution of an order for possession should be suspended, and what should be done for someone in the position of Mrs O’Donnell’s mother on enforcement of the order, but that would come later.

Finally, the Appellants argued that Brent had failed to put in place any or sufficient procedural safeguards having regard to the fact that termination of the licence would end the licensees’ contractual rights and that this amounted to a breach of Art 1, protocol 1. This was held to be:

[...] entirely fanciful. In reality what matters is whether there is going to be an eviction. Moreover I do not see what Mr Cottle means by procedural safeguards. He suggested that Brent should have made inquiries of the licensees and other before serving the notices, that in effect there should have been a complete inquiry about all aspects of the potential effect of a notice to terminate the licence. I do not see why, given the clear breaches of the licence conditions.

Moreover the notices to terminate the licences specified the breaches of the licence terms. No order for possession could or would be made without the opportunity of a hearing. All factual matters will come into play before a licensee is evicted. Procedural safeguards are built into the system.

The public law defences were hopeless from the outset. “Such defences should only be raised when they have real and obvious substance: it is not appropriate to construct intellectual edifices of public law without any proper foundations in reality.”

The Appellants’ appeal dismissed.

On the cross appeal of the suspending of the orders.
The judgment of HHJ Copley did not make clear findings in certain key regards. Brent appealed on the basis that the judge had made errors of principle and that his decision was one no judge could reasonably have reached.

Brent argued that the Judge had wrongly shifted the onus of proving whether Mrs C & O’D were aware of the presence of drugs and other items in the small caravans on their pitches to Brent, where instead Brent had the possession orders and it was for the occupants to show evidence of ‘all the circumstances’ justifying suspension. It was not clear from the judgment whether the judge had so shifted the onus and it should have been clear on this point. However, while it was correct that it was not for Brent to prove that the licencees knew of the presence of the items, given the lack of a clear finding on the Judge’s part that it was for them to do so, the appeal on this point could not succeed.

Brent further argued that the judge “failed to take into account, either at all or properly, in exercising his power of suspension, the very fact of the serious nature of the breaches”.

The Judge appeared to say that he had considered the presence of drugs and firearms sufficiently serious to make the possession orders in the first place and that he had therefore already taken them into account. This was an error.

The Judge there speaks as if the making of the order for possession was justified on the grounds of breaches of the licence terms, and that accordingly he had already had regard to the serious breaches. However, once a valid notice to terminate the licence has been given (which does not depend on there having been breaches of the licence terms) Brent is entitled to an order for possession. The judge was therefore wrong to suppose that he had already taken account of the serious breaches in any respect. In the exercise of his discretion under s 4(4) he erred by disregarding, or at least downgrading, the serious breaches on the erroneous supposition that they had come into account already on the question of making an order for possession. It therefore seems to me plain that in exercising his s.4(4) discretion he failed to take into account a highly material factor. So I think he made an error of principle there.

The error appears to have been suggested by analogy with the reasonableness requirement of Housing Act 1985 in making a possession order.

Further, the Judge had made an error of principle in failing to recognise the seriousness of the November 2008 incident, which took place after the possession orders had been made, but before the hearings on whether they should be suspended, when one would expect the occupants to be considering their behaviour.

The Judge had simply said that while this was regrettable behaviour, it was not of such seriousness as to justify an outright order. Again, it was not for Brent to justify an outright order, which appeared to have been his approach.

Further I think the Judge failed to look at the collective effect of all the matters. He had three: the serious breaches of the licence terms relating to criminality operating from the sites, the blatant breach of conditions by bringing extra caravans on the sites and the incident of 17th November. The Council’s management of the site would be likely to pass beyond control if the orders were merely suspended.

In view of this, the Judge’s exercise of the discretion to suspend the order was flawed. Following Beldam LJ in City Council of Bristol v Mousah (1998) 30 HLR 32:

The public interest, in my view, is best served by making it abundantly clear to those who have the advantage of public housing benefits that, if they commit serious offences at the premises in breach of condition, save in exceptional cases, an order for possession will be made. The order will assist the housing authority, who, under section 21 of the Act, have the duty to manage the housing stock and have the obligation to manage, regulate and control allocation of their houses, for the benefit of the public. In my view the public interest would best be served by the appellant being able in a case such as this to relet the premises to someone who will not use them for peddling crack cocaine.

While in Mousah it was the tenant who had committed the crime, here the licencees were, at the least, in knowing and deliberate breach of the licence terms through the extra caravans and the harassment, and had lost the benefit of the licence. Outright possession orders made.

There was no requirement for the Court of Appeal to conduct a fresh assessment of the circumstances up to the date of the appeal hearing. The decision should be made on the facts as they were at the time of the first instance decision, contra the Appellant’s submissions that this would be in breach of Convention rights (LLoyd LJ)

Lord Justice Wilson dissented only on ‘a matter of emphasis’, that it was putting it too high to say that it was a decision that no Judge could reasonably reach. However, the Judge has failed to address the significance of the November 2008 incident when considering whether there was a basis for a sound hope that the previous conduct would cease.

On s.4(4)(c) Caravans Act – whether the licencees had made reasonable efforts to find other accommodation, the Judge did not make a clear finding, although this was something he should have had regard to under the Act. This was a disputed issue, but

Perhaps the evidence justifies no more than the view that it may or may not prove easy for the respondents to find other, suitable accommodation. We have to weigh also the length of time, namely 13 years, for which the respondents have lived on the site; the unacceptable length of time, namely two years, since the orders for possession were made, although in my view such is a point which cuts both ways; and in particular (whether falling to be weighed under Article 8 of the ECHR or otherwise) the presence on the site of other members of the respondents’ close-knit families. But the egregious misuse of their pitches revealed on 14 March 2008, together with the likely nature of their future conduct demonstrated by the incident on 17 November 2008, yields a conclusion of the balancing exercise in favour of a refusal to suspend enforcement of the orders.

The Court of Appeal also made clear its view that the delays in the process of the claim were completely unacceptable. 15 months had elapsed between possession orders and the hearing on suspension, when the longest that the order could be suspended was itself 12 months at a time. “Courts must make every endeavour to hold early hearings in cases such as these, if necessary transferring them to a nearby centre which can hear the case more quickly.”

Comment
The Court of Appeal expressly cites with approval Toulson LJ in Doran v Liverpool City Council [2009] EWCA Civ 146 to the effect that the test is that the decison to seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision; and that

This is a high test and rarely likely to be satisfied where the decision was made in good faith.

The Court adds

As Doran made clear, the real battle, once a notice of termination is (apart from any question of public law) valid, comes when the question of suspension of an order of possession comes to be considered. All factors (including but not limited to all Convention considerations) can come into play then.

This would seem to restrict a public law defence, in cases where there Court can exercise some discretion over suspending or postponing an order, to challenging the decision to serve notice to quit.

As a decision, this must surely be distinguishable from summary or mandatory possession claims where the principle in Barber v Croydon LBC[2010] EWCA Civ 51 was that what was at issue is a series of decisions, from deciding to serve notice through to enforcement of a warrant.

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Break Clauses North of the Border

Published
by
David Smith
on 07/07/2010
in FLW case note, Possession and Various (non-housing)
. 0 Comments

Batt Cables Plc v Spencer Business Parks Ltd [2010] ScotCS CSOH_81 (01 July 2010)

A new case on BAILII from the outer House of the Court of Session (approximately equivalent to the High Court).

Batt had rented an industrial unit from Scarborough Development Company (Glasgow) Ltd in August 1995 for a term running until August 2020. The agreement contained the following break clause:

Notwithstanding the foregoing…either the Landlords or the Tenants shall be entitled to terminate this Lease on the tenth, fifteenth and twentieth anniversaries of the Date of Entry. The foregoing entitlements to terminate shall only be exercised in terms of this clause by serving written notice to this effect on the other party no less than six months prior to the relevant termination date (time being declared to be of the essence).

There was also a provision relating to the appropriate method for serving a notice:

All notices which require to be given in terms of this lease shall be in writing and shall be deemed to be sufficiently given if sent by first class recorded delivery post addressed…in the case of the Landlords, to the Landlords (if a body corporate) at their Registered or Head Office…or (in either case) to such other address as the Landlords may have notified in writing, and any such notice shall be deemed to have been served forty eight hours after the date on which the same was posted (excluding weekends and public and statutory holidays). In proving service, it shall be sufficient to prove that the envelope containing the notice was duly addressed to the Landlords…in accordance with this Clause and posted to the place to which it was so addressed.

SBP bought the business park on which the unit leased to Batt resided in May 2008 and therefore became the landlords. Batt were informed of this assignment of the landlord’s interest in writing on the same day by SBP’s lawyers. Separately, Spencer Holdings Plc (SH), who were part of the same company group as SBP although a distinct legal entity, wrote to Batt setting out details of rent payment and alos giving contact details of various parties to deal with in relation to matters associated with the tenancy. One of these contacts was a Joe Dempsey whose details were supplied under the heading “Tenancy Issues – Rent Reviews, lease renewals, applications for landlords consent, occupation enquiries“.

In January 2010 the Finance Director of Batt wrote a letter to Joe Dempsey at the offices of SH giving notice to end the tenancy under the break clause on the fifteenth anniversary of the Date of Entry. The letter was sent by special delivery and was signed for at SH’s end. On the same date the letter was sent to the email address previously given for Mr Dempsey.

SBP took advice and their solicitors wrote to Batt in early February denying the validity of the notice on the basis that the letter was addressed to SH and not SBP. Batt also took advice and their solicitor responded that the only mandatory requirement was that the break notice be served on the landlord and not actually sent to them specifically. In other words service on SH as SBP’s agent was sufficient. As the Court put it, “the battle lines were drawn”.

The Court considered the English cases of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 and Lay v Ackerman [2004] EWCA Civ 184, [2005] 1 EGLR 139. In Mannai it was held that a break notice giving the wrong date would not necessarily be invalid because of a minor error. The appropriate test was what a reasonable person would have understood by the notice. In Lay a counter-notice served by a landlord which misidentified the landlord survived on the basis of the same test. These cases have been interpreted in Scotland and while the position is accepted the Outer House (roughly equivalent to the Court of Appeal) has held in the case of Ben Cleuch Estates Ltd v Scottish Enterprise that a break notice which misidentified the landlord was invalid. In that case the Mannai test was never applied on the basi that the notice was simply improperly served.

Batt sought to distinguish Ben Cleuch on the basis that the decision in that case was not a general rule of law but was, in fact, based on the specific wording of the lease in that case which made the serving of a notice on the landlord an absolute requirement. This was not the case here. The Court did not accept this position and held that the decision in Ben Cleuch was indeed a general statement of the law. The Court distinguished Lay from Ben Cleuch and this matter on the basis that in Lay the notice was being served by the landlord on the tenant and therefore the error in the landlord’s name was of lesser import as it could not have caused misunderstanding.

However, the appeal was actually allowed on the basis that SBP had identified Mr Dempsey as their agent for the purpose of receiving notices as this was an absolute requirement for the fulfilment of his declared function. Therefore the notice was valid by being served on the agent of the landlord.

The law in England and the law in Scotland may not be absolutely in accord on this issue. There is some question as to whether a misstatement of the receiving party’s name or service at the wrong address would necessarily invalidate a break notice in England. Batt is only a mildly persuasive case in England and is not binding authority. However, it is a point to be aware of and it should be noted that while errors of dates can be forgiven (although not in relation to statutory notices so this has no application for section 21 notices) errors of names are less likely to be treated so lightly, especially in Scotland.

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Ground 14A and Domestic Violence

Published
by
David Smith
on 01/07/2010
in FLW case note, Housing law - All, Nuisance, Possession and assured-tenancy
. 0 Comments

Metropolitan Housing Trust v Hadjazi [2010] EWCA Civ 750 (01 July 2010)

An interesting, although sad, case which raises issues of construction of Ground 14A of Schedule II of the Housing Act 1988.

H had an assured tenancy of the property from a property in Thornton Heath from MHT which began in 2003. He occupied the property with his wife and 4 children. From 2000 there had been problems in the relationship which had seen violent threats and behaviour by H towards his wife and children including incidents in which he had apparently attempted to strangle and kill his wife. In 2006 they separated and he left the property, his wife and children then residing there alone. The violent behaviour continued and H breached an injunction resulting in a suspended sentence. This did not stop his behaviour. In November 2007 the wife and children were moved to an undisclosed location and in December H began occupying the property again alone.

In January 2008 MHT began possession proceedings against H under grounds 12, 14 and 14A of Schedule II of the Housing Act 1988. The matter ultimately came before HHJ Ellis sitting in the Croydon County Court and, after a three day trial he gave judgement dated 6 October 2009. He dismissed the ground 12 claim (breach of a clause of the tenancy other than one relating to rent) on the basis that the clauses which MHT alleged had been breached (all relating to nuisance and harassment) were directed to neighbours and not to other occupiers of the same property. He also dismissed the claim under ground 14 for broadly similar reasons. Following the principle against doubtful penalisation HHJ Ellis adopted a tough stance on the ground 14A point and held that it only applied to violence or threats which were proven during the period when H and his wife were living together as a couple. He held that even if he were wrong on this point he would stil refuse an order for possession on the grounds of reasonableness as H was ill and the effect of the possession order would be to leave him homeless which would be ‘devastating’.

On appeal the Court upheld HHJ Ellis’ rulings on grounds 12 and 14 but overturned his ruling on ground 14A. The Court dismissed an argument that ground 14A was discriminatory against those who lived as a couple without being married or in a civil partnership because the ground did not apply to couples who no longer lived together. Most importantly the interpretation of ground 14A used by HHJ Ellis did not find favour.

I agree that the ground looks to the past, first to the facts of occupation and living together and then to identify the past event that triggers the operation of the ground i.e. the victim of the violence leaving the property because of the violence. The ground also looks to the future to see if the person who has left is unlikely to return. The essential point is that the use of the past tense does not expressly or impliedly require the parties to the relationship to be living together as a couple at the date of the causative violence or at the date of the relevant triggering event. The references to “couple” (and to “partner”) do not impose such a requirement: they identify one of two people in a relevant relationship.

The Court held that the findings of fact made by the judge fitted ground 14A and was unimpressed by the suggestion made by the judge that the timing of Mrs H’s departure was relevant. Essentially once the finding of fact had been made that it was H’s conduct that had caused Mrs H to leave the premises then ground 14A was made out.

As the decision on reasonableness was made in the light of an erroneous construction of ground 14A the Court decided to remit the matter back to a different circuit judge for a reconsideration of whether it would be reasonable to make an order for possession.

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The Monk habit

Published
by
NL
on 30/06/2010
in FLW case note, Housing law - All, Possession and secure-tenancy
. 0 Comments

Lana Wilson v London Borough of Harrow [2010] EWHC 1574 (QB)

This was the combined permission/appeal hearing in the High Court from a first instance hearing by a CJ of a defence to a possession claim based on an NTQ served by a joint tenant. The principal ground of appeal was a further argument that the rule in LB of Hammersmith and Fulham v Monk [1992] 1 AC 478 was in breach of Article 8 of the European Convention of Human Rights.

We have been here before, a couple of times. R(Husband) v Solihull; Dixon v Wandsworth. (Links to our reports). The issue is whether the rule that a notice to quit given by a joint tenant determines the tenancy for the remaining tenant stands, where the landlord is a public authority, or is at least arguably in breach of Art 8.2 so incompatible. If so, can it be remedied by a change to the common law on notices to quit by a joint tenant.

Both Husband and Dixon had found that, given Harrow LBC v Qazi [2004] 1 AC, unless the House of Lords/Supreme Court took a different view, the rule in Monk was not arguably incompatible with Article 8.

The brief facts in this case where that the appellant, Ms W, had been given a secure tenancy of the property in 1992. In 1994 it was turned to joint tenancy with Ms W’s husband. By 2005, Ms W had begun to suffer mental health problems. Rent arrears began to accrue, because Ms W would not deal with making a housing benefit application. Mr W left with their child. In 2006 to 2007, Mr W was in discussions with the local authority about the tenancy. He was apparently advised that, if he wished to end his responsibility for the tenancy and the accruing arrears, he could serve a notice to quit in the course of extensive discussions between him and Harrow’s housing officer, in the course of which Ms W’s increasing mental health difficulties were made clear to Harrow. Eventually, after Harrow had sent an NSP on rent arrears of £1175.63 in February 2007 and several further letters, Mr W did sign an NTQ sent to him by Harrow and sent it dated 30 March 2007, ending the tenancy from 30 April 2007. Despite extensive attempts by Ms W’s friends, she failed to complete an application for a new tenancy until September 2007, when it was rejected. In March 2008, Harrow began possession proceedings. A litigation friend – the official solicitor was appointed.

At first instance, Ms W’s defence, that the rule in Monk that a notice to quit by one joint tenant determined the tenancy of all joint tenants was in breach of article 8, and so the Notice to Quit was not valid as a way of ending the tenancy, was dismissed.

In relation to the Article 8 argument, the judge concluded that the Council had taken account of the relevant considerations and that it was not unreasonable to seek possession. It was fundamental to the Council’s decision, he concluded, that the Applicant was “over housed in a two bedroom flat and that her housing needs can be met in a one bed flat.

A possession order was granted and a judgment for arrears of about £3,200.

Ms W appealed on grounds that:

1. The rule in Monk is incompatible with Article 8
2. The common law should be developed so as to treat notice to quit by one joint tenant as an act similar to a release or assignment of interest to the remaining joint tenant.
3. The Council, as a public authority, must deal with people who turn to it for advice fairly, not only to them but others directly affected. In advising Mr W to serve notice to quit rather than assign or transfer his interest in the property to Mr W, the Council were in breach of this duty. (This hadn’t been argued in this form below).

On 1. After a tour of Dixon, Husband and, most importantly, Harrow LBC v Qazi [2004] 1 AC 983, the Court held that although the rule in Monk predated the incorporation of the ECHR into English law, Qazi was to be taken as binding on the proposition that the rule in Monk was not incompatible. Until Qazi was said not to be good law any argument as to incompatibility was bound to fail. Their Lordships had not considered it needed revisiting in the light of McCann v UK.

On 2. The respondent no longer accepted that Mr W’s interest could have been assigned. Because of the judgment on 1, it was not necessary to decide this point, nor whether such a development in the common law was necessary to render Monk compatible with Art 8. However, such a development would render some very familiar concepts altogether new, in what would be a far from incremental step. It would probably require Parliament to intervene.

Harrow contended that to construe a notice to quit by one joint tenant in such a manner would conflict with the requirements of the Housing Act 1985 on assignment. It was common ground that the relevant exception to the general prohibition on assignment was HA 1985 s.91(3)(c):

an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.

Harrow argued that (c) contemplated the transfer of a tenancy to a non-tenant, not assignment of interest from one joint tenant to another:

As I understood his [Counsel for Harrow] argument, it was as follows. The policy of the 1980 Act (consolidated in the 1985 Act) was to permit transmission of a secure tenancy by way of succession once: see Birmingham City Council v Walker [2007] 2 AC 262. The test of whether an assignment may be valid is whether the purported assignee would have been “qualified to succeed” the tenant on the tenant’s death. Since, he argues, the tenancy would vest in the surviving tenant by operation of the principle of survivorship (which the Housing Act 1985 leaves intact), it would only be then that that sole tenant would be deemed to be a “successor” (within s.88(1)(b)), but only for the purposes of preventing a succession to the tenancy in the future.

Which, as far as I can see means that Harrow were arguing that a sole tenant by means of survivorship is a successor but only to the extent that it prevents another succession, but the joint to sole tenancy wasn’t a succession (apart from for these purposes of a further succession, when it was). Is it just me, or this that a bit of a stretch? We’ll not find out now, because the Court held that these were complex issues of statutory construction that it was not now necessary to resolve and would be better considered in a case in which they arose directly. But the Court was unable to conclude that an NTQ could be interpreted as an assignment or transfer of interest to the remaining tenant.

On 3. This specific argument had not been made to the court below. It effectively raised the issue of oppression:

The body of law upon which the argument is founded includes those cases raising the issue of “oppression”: see, for example, Southwark L.B.C. v Sarfo (2000) 32 HLR 602 (where Roch LJ said, at 609, that “oppression may be very difficult if not impossible to define, but it is not difficult to recognise”); London Borough of Hammersmith & Fulham v. Hill (1995) 27 HLR 368; Lambeth London Borough Council v Hughes (2001) 33 HLR 33. It includes also those situations where, in general terms, a housing authority must act “fairly and reasonably” in administering its responsibilities: see, for example, Sheffield City Council v Smart (2002) HLR 34.

While an abuse of power could not invalidate Mr W’s notice to quit, Ms W argued that it would make it an abuse not to grant the sole tenancy to Ms W subsequently.

Harrow argued that this issue was raised far too late, with plenty of opportunity to raise it below.

Held:
While the judge below had not been asked to consider this issue as now presented, a judge in a busy County Court will be alert to something amiss in a case like this. IN fact the Judge referred approvingly to the housing officer’s handling of her dealings with Mr W and Ms W and considered she had made considerable efforts to assist.

This Court could also not identify anything amiss in the housing officer’s handling of the case:

In the first place, there would have to be a compelling argument that assignment was not merely an option, but an option that would have led to the Applicant being immune from a claim for possession. Whilst I have not found it necessary to form a concluded view on this issue, I have noted that the issue is not entirely straightforward. If I am correct in that analysis, I find it difficult to see why a housing officer should raise such an issue directly with someone such as Mr Wilson or his wife: it could set a hare running which would be best left sedentary. The best that could be done, as was done here, was to advise the obtaining of independent legal advice

Permission to amend grounds of appeal to include this issue refused.

Ms W’s position was a difficult one and in view of her mental health issues, this decision was one that, if the law permitted, would have been found the other way. However, the possession order would mean that Ms W would have to move, which although it would be a considerable hardship to her, would not mean that she was homeless.
Permission to appeal given, but appeal dismissed.

Comment
It is now clear that any challenge to Monk on Art 8 grounds is going to have to go to the Court of Appeal and probably the Supreme Court. While Mr Justice Foskett here acknowledges that Husband and Dixon were both High Court judgments and, like his own, not technically binding on other High Court judges, he adds:

I am of the view that the rule in Monk is compatible with Article 8, it seems to me that, whilst neither my decision nor the other two to which I have referred is technically binding on other judges of first instance, the likelihood is that it will require a converse decision of a higher court before an argument to the contrary can be advanced with any realistic prospect of success.

So, any news on whether there is an appeal brewing? I am given reason to believe that there is at least one more challenge to Monk awaiting a High Court hearing (and presumably dismissal and appeal…)

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The quietus of the tolerated trespasser

Published
by
NL
on 23/06/2010
in FLW case note, Housing law - All, Possession, Tolerated trespasser and secure-tenancy
. 10 Comments

Austin v London Borough of Southwark [2010] UKSC 28

It has been a long story for Mr Austin and a long, long, long story for the tolerated trespasser. But this Supreme Court judgment should be the last time the Supreme Court is troubled by the legacy of Thompson v Elmbridge Borough Council [1987] 1 WLR 1425 and Burrows v Brent London Borough Council [1996] 1 WLR 1448. Further, it is, in many ways, an epitaph for the ‘anomalous’, ‘dubious’, ‘oxymoronic’ concept of the tolerated trespasser – and ‘all of this nonsense’ could have been avoided (quotes from Baroness Hale, on which more below). This is a judgment worth reading in full, but I’ll do what I can.

Our report of the Court of Appeal judgment is here, but briefly the facts are that Barry Austin was the brother of the late Alan Austin, who was a Southwark secure tenant. In 1987 a suspended possession order was made against Alan Austin in the then form N28, ‘not to be enforced’ if arrears of £3192.96 were paid within 28 days. The order was breached, so on any evaluation, Alan Austin was a tolerated trespasser from 1987. Southwark did not enforce the Order and there was no indication that Alan had been informed that he was a tolerated trespasser then or subsequently. In 2003, on his account, Barry Austin moved in with his brother to care for him as he was by then seriously ill. In February 2005, Alan Austin died. In September 2006 Southwark served Notice to Quit on Barry Austin and then began possession proceedings in January 2007. It came as a complete surprise to Barry that there had been a possession order and certainly that his late brother was a tolerated trespasser.

Barry Austin applied to the County Court to be appointed to represent Alan’s estate in the 1986 possession proceedings under CPR 19.8 and, if appointed, to apply for an order under s.85(2)(b) Housing Act 1985 postponing the date of possession such that Alan’s tenancy would have existed at the date of his death and Barry would have, on his account, succeeded to the tenancy. The application failed at first instance, on appeal to the High Court and, as our previous report sets out, on appeal to the Court of Appeal. There were a number of issues on each appeal, but the principal issue was the Court of Appeal judgment in Brent London Borough Council v Knightley (1997) 29 HLR 857, that the right to apply for a postponement of an order for possession was not an interest in land capable of being inherited, and was therefore a personal right that ended with the death of the tenant/tolerated trespasser. Although Barry Austin had not alleged direct inheritance, but instead sought appointment for the estate of Alan Austin, Knightley was held to be fatal for that application and any arguments raised on ‘property’ under Article 1 Protocol 1 ECHR in its support.

So, to the Supreme Court.
Barry Austin raised as grounds of appeal:
i) a secure tenancy does not end on breach of a conditional suspended possession order but endures until the order for possession is executed. (The Knowsley argument, paralleling the finding on assured tenants on Knowsley Housing Trust v White, link to our report)
ii) Brent v Knightley was wrongly decided, such that the right to apply under s.85 Housing Act 1985 survived the (ex) tenant’s death
iii) Such a right to apply is a possession under article 1, Protocol 1 of the European Convention on Human Rights
iv) To hold that the right to apply did not survive death would be in breach of Art 1 Protocol 1
v) the deceased person had an interest in a claim for the purposes of CPR 19.8

Southwark maintained that Burrows v Brent and Brent v Knightley were rightly decided and that, for the reasons given in the Court of Appeal no right to apply arose and so no interest in a claim under CPR 19.8

Lord Hope’s lead judgment, with which Lords Brown and Kerr agree, is that LB Brent v Knightley was wrongly decided. The details of the reasoning are set out below. But what is remarkable is the assessment Lord Hope (and indeed Baroness Hale) make of the judgments in Thompson and Burrows.

On issue i) Lord Hope finds that the argument wholly revolves around the interpretation of s.82(2) Housing Act 1985, which as originally enacted read:

Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order.

Thompson and Burrows had found that this meant on the date specified for possession in the possession order, or as per Thompson, where there was a breach of the terms of the order suspending enforcement. As we all know, Harlow DC v Hall later meant that on the then wording of Form N28, the tenancy ended on the date of possession in the order regardless of breach of terms. However, in Knowsley v White, Lord Neuberger had taken the view, albeit obiter, that it was entirely possible for an alternative interpretation of s.82(2) to be made, such that the date the tenancy ended was the date ‘on which the tenant was to give up possession’, i.e. on enforcement, bringing it into line with the interpretation of Housing Act 1988 for assured tenants in that case. The House of Lords did not pursue this interpretation in Knowsley, largely because Counsel for all parties (including Jan Luba QC) submitted that the then Housing and Regeneration Act would remedy this issue via the replacement tenancy, and in view of the may thousands of cases that had already been based on Thompson et al.

Lord Hope is more than prepared to entertain Lord Neuberger’s view of s.82(2), noting that it is

a remarkable fact that a conclusion about the meaning of section 82(2) which, admittedly with the benefit of hindsight, is so obviously unsatisfactory and conceptually confusing should have been reached with so little reasoning. [para 20]

(that’s a lack of reasoning in Thompson and then in Burrows). In Thompson it was little more than a one sentence assertion and in Burrows there was no attempt at reasoning beyond noting the result in Thompson.

The context of s.82(2) in the Act tends to favour Lord Neuberger’s interpretation, in view, for instance of the continued right to buy under s.121 which only a secure tenant can have, s.118. However, the question then is should the Supreme Court hold Thompson and Burrows as wrongly decided?

At issue is the Practice Statement of 26 July 1966 on the then House of Lords overturning its own judgments. The Practice Statement remains relevant for the Supreme Court. In this case, Lord Reid’s observations in R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435 were pertinent:

I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act. … I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.

Not only was the decision in Thompson of long standing, and as such had been relied upon in many thousands of county court cases, but the Housing and Regeneration Act 2008 had substantially addressed the problems of the tolerated trespasser regime. Apart from the factual situation in this case, the only remaining effect of the tolerated trespasser period was the absence of liability on the landlord’s part for covenants – specifically the repairing covenant – during the period of tolerated trespasser status prior to the replacement tenancy. Parliament’s deliberate decision not to revive or retrospectively reinstate tenancies had to be respected. Lord Hope considered the evidence of the consultation process in this regard. To declare Thompson wrongly decided would be to undo the will of Parliament in the HRA 2008.

On issue ii) there is nothing is s.85 Housing Act 1985 that prevents the right to apply from being ‘transmitted’. The right is conferred by statute and so statute governs its limitations, rather than common law.

In Knightley, Aldous LJ in the High Court had found the right was ‘incapable of being inherited’, This was not the same as ‘incapable of being transmitted’ as Longmore LJ had mistakenly found in the Court of Appeal. The distinction is that between common law and statute. Further:

Addressing himself, in para 54, to the terms of the statute, Longmore LJ said that Parliament plainly intended that the person who would otherwise be entitled to a secure tenancy if it had been revived should not be able to revive it in his or her own name. To hold that the deceased’s estate can apply to revive it for the purpose of enabling that person to obtain a secure tenancy would be to circumvent, if not flout, that intention by means of a legal device. I have to confess that I do not follow this reasoning. It seems to confuse the provisions about succession on the death of the tenant under a secure tenancy with the situation that section 85 is dealing with, which is the exercise of powers by the court on the making of a possession order. [para 37]

The powers in s.85 are exercisable ‘at any time before the execution of the order’. There is no limitation on death, whereas s.87 to 90 deal expressly with the death of the tenant but do not contain any provision limiting the application under s.85. A number of situations in which the s.85 right could be exercised were imaginable, for example:

where the tenant has died before the possession order has taken effect to end the tenancy. There would seem to be no reason why the deceased’s personal representative should not be able to seek the exercise of the power to postpone giving effect to the possession order, for example to enable the deceased’s affairs to be put in order and any licensee or sub-tenant to be re-housed. Another example of a case where one would expect the personal representative to be able to apply would be where the deceased tenant, having made good a previous default, has applied for the date for possession to be postponed but dies the day before his application is to be heard. [para 38]

If the s.85 powers were exercisable after the tenant’s death in the circumstances envisaged in s.90(3) or by a spouse in occupation at tenant’s death when possession proceedings are brought by s.85(5), then it was clearly envisaged that the s.85 powers did not end with the tenant’s (or tolerated trespassers’) death.

For these reasons Knightley was wrongly decided.

Issues iii) and iv) therefore did not require deciding.

On issue v) the proceedings in which application to be appointed on behalf of the estate would be made were the original possession proceedings, given that the right to apply under s.85 remained. (On a personal note, I claims small vindication on this point as I took this view from the start of the case). On this Lord Hope says:

I have to say that I regard this solution to his case to be preferable to the solution for which Mr Luba contended under the first issue. It is directed precisely to the situation that arises where a former tenant who has become a tolerated trespasser has died. Above all, it preserves the discretion of the court under section 85(2) to do what is just in all the circumstances. This is a protection for the landlord which would be entirely absent if the first solution were to be adopted. [para 40]

And then there is the only other substantive judgment by Baroness Hale, with whom Lord Walker agrees. Baroness Hale’s findings are the same as Lord Hope’s. The circumstances are not right to overturn Thompson and Burrows, but Brent v Knightley is wrongly decided. And the reasons given are similar. But what is notable about Baroness Hale’s judgment is the strength of her view that:

had it not been for Parliament’s intervention, it would have been the duty of this Court to set the matter right. There is no reason to believe that Parliament intended that such an anomalous status should arise as a result of the provisions of the 1980 and 1985 Housing Acts. There is little reason to believe that the full implications of their decision were apparent to the Court of Appeal when they decided Thompson v Elmbridge Borough Council [1987] 1 WLR 1425. That decision was assumed to be correct by the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448 but it suited both parties for them to do so.[para 44]

The issue did not directly arise in Knowsley and:

Thus there is no House of Lords case which has addressed the issue full on and reached a reasoned conclusion about it. If there had been, it would have had to address all the conceptual and practical problems which have arisen since Thompson. [para 44]

Lest we were in any doubt about those consequences, the tolerated trespasser is described as an oxymoron.

These were not people whom the local authority were reluctant to have there and were waiting for the machinery of eviction to take its course. These were people whom the authority wanted to have there, provided that they could be persuade to pay most, if not all, of their rent. [para 45]

This situation would normally have given rise to a licence at least and most probably – Street v Mountford – a tenancy. But the House had relied upon the availability of a s.85 application, while no one had argued that the same policy result could have been achieved by over ruling Thompson.

It is unlikely that the Court realised the implications of its decision, particularly in view of the later Court of Appeal decisions in Harlow DC v Hall and Bristol City v Hassan. The effect a date for possession being given in old possession orders was surely usually accidental. A different construction of s.82(2) could have avoided all of this.

Were it not for the Housing and Regeneration Act 2008, it would be right for the court to ‘sort this matter out’.

The decisions in Thompson and the cases which proceeded on the unquestioned basis that Thompson was correct were not merely wrongly decided. They set the law on a course which was wrong in principle and wrong in practice. [...] Even if some local authority landlords might have welcomed not being under a contractual obligation to repair properties for which the occupier was not paying the full rent, they would also have acknowledged that it could not be right for them to be able to charge the equivalent of the full rent which was calculated on the basis that they did have an obligation to repair. In such circumstances, it would ordinarily be our duty to recognise that the law had always been what we hold it to be. [para 54]

However, the only gaps remaining in the Housing and Regeneration Act 2008′s approach to the issue were the repairing covenant for the period of tolerated trespasserhood – for which the Court’s discretion to find the tenancy as continuous had been provided in the Act – and the circumstances of the present case, which overturning Brent v Knightley solved. So:

I would reluctantly dismiss the appeal on the first issue but happily allow it on the second. [para 56]

Barry Austin’s application under s.85 remitted to the County Court for decision.

Comment
It is perhaps understandable that their Lordships could not bring themselves to overturn the whole tolerated trespasser regime. Given the thousands, if not tens of thousands, of county court judgments based on it, the consequences could be very messy indeed. But the clear implication of the judgments is that the whole 20 year period was an error that should not have been made.

The practical result of this case should not be underestimated. We know of at least 10 cases stayed pending this judgment. Anecdotally, I know of at least another one that settled happily, but which would not have been contentitious at all on this result. Considering the tens of thousands of tolerated trespassers, there are likely to be significant numbers who died while having tolerated trespasser status and whose would-be successors now have a chance to apply to postpone possession and thereby succeed.

The process is that the estate, if there was a will, should apply under s.85 in the original possession proceedings to vary the date of possession. Or where the TT was intestate (more usual), the potential successor should apply under s.85 to vary the date of possession in the original possession proceedings. As Knightley is overturned, I don’t think there should be any need to first apply under CPR 19.8 to be appointed as representative first.

And, if anyone needed reminding, the last lacunae of the TT regime – the landlord’s repairing obligation – can be remedied (as things currently stand) by application under s.85 to vary the original possession order, which remains valid despite the replacement tenancy and/or by application under Schedule 11 of the Housing and Regeneration Act 208 for the replacement tenancy to be considered as continuous from the original tenancy. It is probably worth brandishing the passage of Baroness Hale’s judgment on repairs and charging mesne profits of full rent quoted above when doing so.

Congratulations to Charlotte Collins of Anthony Gold, who case this has been throughout, Desmond Rutledge and Jan Luba QC of Garden Court (for the latter not least for standing in front of the Supreme Court to argue that his own submissions on the then Housing and Regeneration Bill in Knowsley were wrong. That takes both courage and grace.)

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Waiting For Tiensia

Published
by
David Smith
on 17/06/2010
in Assured Shorthold tenancy, FLW case note, Housing law - All and Possession
. 5 Comments

Qurat-Ul-Ain Zia v Mourtada Central London County Court 09/02/2010

This case in Central London County Court has been reported briefly in Legal Action [but we have had the transcript - NL]. While this post makes reference to the Tiensia case this matter actually concerns an issue which will probably not be dealt with by the Court of Appeal. Specifically, it deals with the question of whether a tenancy deposit taken prior to the introduction of the tenancy deposit protection schema should be placed into protection on the renewal of a tenancy.

Facts
The facts are simple. A number of consecutive tenancies had been entered into between Q and M, the most recent commencing on 6 December 2008. The tenancy agreement for this tenancy made reference to a deposit of £1400 described in the agreement with the words “Deposit £1,400 (already held)”. A further clause in the agreement made provision for the payment of a deposit by M to Q to hold for the term. This clause apparently was a reference to the deposit already held by Q. M fell into arrears of rent and Q issued a notice under section 8 of the Housing Act 1988 for possession. M counter-claimed for the usual penalties for an unprotected deposit to be offset against the arrears of rent.

Received
The argument revolves around the wording of s213(4) of Housing Act 2004 which states that a tenancy deposit taken in relation to an AST must be dealt with in accordance with the legislation “as from the time it is received”. For M it was contended that the money was received anew each time the tenancy was renewed. Q argued that the word ‘received’ should be given its natural meaning and the deposit monies were not received in December 2008 but much earlier, prior to the introduction of the requirement to protect in April 2007.

Judgement
The Court was not prepared to follow the arguments advanced for Q. It was held that the deposit, while not physically repaid and paid again at each tenancy renewal was, nonetheless, received anew each time. The Court drew a distinction between the “nature and function” of the monies and the manner in which they had physically been held. Accordingly, it was held that the deposit had been ‘received’ in December 2008, had not been properly protected, and therefore judgement was given for M for the usual penalty of three times the deposit.

Discussion
With respect to the Court (and possibly courting the opprobrium of he masses) I am going to suggest that this decision is incorrect. If we consider the ruling of Longmore LJ in the Court of Appeal decision in UK Housing Alliance v Francis (which we discussed here) he states that the Act contains a “pervading reference to money ‘paid’ by the tenant to the landlord, ‘received’ by the landlord and ‘repayable’ by the landlord to the tenant”. Admittedly this judgement was given in reference to a situation in which the tenant had never transferred any money to the landlord but had had a sum that was potentially due withheld. However, this reference to payment as highlighted by Longmore LJ would seem to require a transfer of monies at each stage. It is clearly not the case that M paid money to Q on each renewal and therefore I would venture to suggest that the suggestion that there is a form of virtual receipt on each renewal is an overly strained construction.

With thanks to Alan Mullem at Moss Beachley Mullem & Coleman for the copy of the full judgement.

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Gateway (b), CPR 55.8(2), and disclosure: Brent LBC v Stokes

Published
by
Dave
on 16/06/2010
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 0 Comments

The Court of Appeal have refused permission to appeal in Brent LBC v Stokes [2010] EWCA Civ 626 (not on Baili yet) – we reported the High Court judgment here, which contains the summary of the facts and the important decision of King J.  The case raises a really significant point about the seriously arguable test, when defending possession proceedings drawing on a gateway (b) public law challenge.  In essence, the point is about CPR 55.8(2) – where a possession claim is disputed on grounds which appear to be substantial, the judge can give case management directions; if there is no such defence, then possession should be ordered.  How can you reach the “substantial” threshold on a gateway (b) defence/counterclaim when you haven’t had sight of the claimant’s papers which may (or may not) enable your gateway (b) defence/counterclaim to be made out?  The concern of the courts so far has been to stop fishing expeditions so that “ordinary” possession cases (is there such a thing any more?) can remain manageable (at [17]).

The position of Counsel for Ms Stokes was as follows:

What is said is that the Council is under a positive duty not merely to state the reasons for the decision which it has arrived at … but also to state specifically whether it has or has not — and if it has to what extent it has — taken into account the matters raised by the occupier as arguably relevant to a decision to seek possession.

In the absence of disclosure, any defence is likely to be no more than a list of matters which the claimant ought to have considered.  Significantly (to me, at any rate), by contrast to possession proceedings, if the Defendant seeks judicial review of the claimant’s decision, then they are likely to get a fuller explanation through the pre-action protocol procedure.

The CA (Patten LJ giving the only reasoned judgment) made the following points: the claim was really about the limits of the duty to give reasons under common law, and not really about CPR 55.8(2) (but significantly does not seem to address how/whether that common law duty might be developed in this context beyond the observation that it may raise matters which are irrelevant to the decision which the claimant made).  The analogy with JR “… does not assist because that does no more than to give the decision-making authority the opportunity to expand upon its reasons for the decision under challenge and so possibly avoid the need for litigation”.

Perhaps I say this far too often, but this decision just seems and feels wrong.  Occupiers can use the gateway (b) defence/counterclaim to possession claims but then they are unable to pursue that defence/counterclaim unless the claimant (unwisely, I presume) gives reasons and/or disclosure.  This is giving with one hand and taking away with the other.  The CA refer to McGlynn (links to our post) as being based on a “simple analysis” but that analysis was only possible because of the disclosures made by Welwyn Hatfield in the course of McGlynn’s occupation of the property about their relevant policies.

I feel an ECHR application coming on …

[I should have credited Garden Court's e-bulletin for alerting us to this judgment]

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