This was a second appeal to the Court of Appeal of a first instance decision that Mr Henley’s claim for disrepair against his former landlord, Ms Bloom was an abuse of process, the first appeal to a Circuit judge having been dismissed.

The brief facts: Mr H was the tenant of a basement flat since about 1986. Ms B was the landlord from about 2001, when she acquired the freehold of the property, later just retaining a lease of the basement flat.

In October 2002, Brighton Council served notices stating that it was minded to serve formal notice requiring repairs, including defective pipes, brickwork and plaster, windows and doors on Mrs B. In November 2002 formal notice was served. In February 2003 Mrs B obtained a builders survey which highlighted penetrative damp and defective plaster work. No works were done. In September 2006, Mrs B obtained another builder’s survey, showing similar problems.

Meanwhile, in August 2006, Mrs B had begun possession proceedings against Mr H on the grounds that the tenancy was an AST which had been duly terminated.

Mr H defended on the basis that he was a regulated tenant under the Rent Act 1977 and there were no grounds for possession under that Act. Alternatively, it was a shorthold tenancy, no notice had been served under s.52 Housing Act 1980, and it was not just and equitable to dispense with notice.

The claim was settled in January 2007 on terms that Mr H would vacate by 1 June 2007 and Mrs B would pay him £16,000 and £4,000 costs. In the recital to the consent order it stated that this was full and final settlement of any claim Mr H might have arising out of improvements he had carried out at the flat, and that Mr H was to leave the flat in a good and tenentable condition when he vacated.

Mr H left on 1 May 2007, but before he did, he obtained an expert report from an environmental health officer on the condition of the property, showing extensive disrepair.

Mrs B refurbished the flat in July 2007, receiving a report from the builders on damp penetration and other issues.

Soon afterwards, Mr H raised his disrepair claim with Mrs B. There was some skirmishing on liability, causation and the extent to which Mr H had contributed to the defects. The claim was issued in November 2008.

Mrs B defended on the basis that the claim was an abuse of process and that a fair trial was impossible. Mrs B applied for a strike out on that basis. She also counterclaimed for untenant-like behaviour and breach of the agreement to deliver up in tenantable condition.

The first instance DJ granted the strike out. He held:

that there was no good reason for Mr Henley not having raised the disrepair claim during the course of the possession claim and that he “was not putting his cards on the table” during the negotiations which settled that claim. He said that the disrepair claim “ought to have been brought in the earlier proceedings”, and was “eminently capable of being settled in those proceedings”. Accordingly, he concluded, the claim was an abuse of process. He also concluded that it would be impossible to have a fair trial as Mrs Bloom was “now in a position in which she cannot instruct an expert to inspect the alleged defects in the flat.

Mr H appealed to the Circuit Judge. The CJ dismissed the appeal, for rather narrower reasons.

He relied on the fact that “the state of the property was raised in the possession proceedings and in the negotiations that led to the consent order”, and also on the fact that “the tenant agreed that he would deliver up the property in good condition”. Accordingly, as the condition of the flat was raised both in the argument contained in the pleadings and in the agreed terms contained in the consent order, he concluded that it was an abuse of process to raise a subsequent claim for damages for disrepair of the flat. As to the fair trial issue, Judge Simpkiss said that Mrs Bloom “would be fighting the case with one hand behind her back” and that the unfairness “had been caused entirely” by Mr Henley.

On a second appeal, the case came to the Court of Appeal.

After reviewing the precedent cases (Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, Stuart v Goldberg Linde (a firm) [2008] 1 WLR 823 ) and noting that it would be “wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive” (Lord Bingham in Johnson), and the Art 6 entitlement to access to justice for an arguable case, the Court of Appeal found that Mr H’s disrepair claim was not an abuse of process.

Mr H could indeed have raised the claim in the possession proceedings (held against his own argument), but the issue was whether he should have. On that:

i) the possession proceedings did not involve the question of whether the flat was out of repair. The provisions in the consent order related solely to Mr H’s improvements to the flat and/or his obligation on the condition of the flat at the end of the tenancy. it did not touch on Mrs B’s obligations.

ii) If the possession claim had gone to trial, whether Mrs B had won or lost, there would be no question that a subsequent disrepair claim by Mr H would not have been an abuse of process. It was therefore only the ‘integrity of the consent order’ that was at issue. But that order was clear on its terms and it was, of course, open to Mrs B to introduce terms on disrepair at that time. Given the factual history it could not be said that she was unaware of the possibility of such a claim and it was as much up to her to raise it in the possession proceedings as Mr H.

The bringing of the claim was not an abuse of process. If at trial the court was unhappy about the manner in which the claim had been brought, it was open to deal with that in costs.

On the fair trial issue, it was clearly possible for there to be a fair trial. While Mrs B could no longer obtain an expert report on the condition of the property at the relevant time, she had an abundance of material relating to the condition of the property between 2001 when she purchased it to July 2007 when the builders conducting the refurbishment reported to her.

It is not unusual for one party in litigation to be better informed or better advised than the other, for one party to have first hand evidence of important events which is not available to the other, or for one party to have stronger expert evidence than the other. Such inequalities normally cannot possibly justify a conclusion that the trial cannot be fair, even where the advantaged party can be said to be in some way to be responsible for the inequality. Of course, if the inequality is very substantial and very prejudicial, and especially if it is attributable to the actual wrongdoing of the advantaged party, the court might conclude that a fair trial cannot be achieved. But this is not such a case.

In addition, Mrs B could cross examine Mr H’s expert.

Mrs B failed by a significant margin to establish a fair trial was not possible.

Appeal allowed on both points. Mr H may have been underhand in keeping the disrepair claim up his sleeve, but it was not abuse to do so.

Comment
Thank heavens for that. The idea that all possible litigable issues arising out of a tenancy should be stuffed into a possession proceeding or risk being struck out as an abuse of process is bonkers. While a disrepair counterclaim may well be both relevant and necessarily raised in a possession claim based on rent arrears, in a claim such as this, based on notice and terms of termination of the tenancy alone, it is hard to see how a disrepair claim could be considered relevant, let alone necessarily have to have been included. And it may well be that the time scale of the possession proceedings would prejudice the disrepair claim, where time for expert evidence and relevant disclosure is important.

Showing abuse of process must surely be a high hurdle to surmount. The first instance and first appeal decisions in this case appear to have been extremely generous to the landlord, to put it mildly, largely on the basis that Mr H hadn’t behaved particularly sportingly.

Ms Herelle was the assured tenant of SLFHA (now part of Horizon Housing). Her tenancy of the one bed flat began in September 2001. There had been problems with the property since early in the tenancy including mould growth, an unpleasant odour and damp throughout the flat. SLFHA had carried out drylining to the rear bedroom and replaced damp wall plaster to an area of the hallway in 2006. Rotten window frames with fungal growth, present from an early part of the tenancy, were replaced in 2007.

The landlord’s repairing covenants in the tenancy agreement included the usual terms to repair the structure and exterior and gas/electicity/water/heating installations in parallel with S.11 Landlord and Tenant Act 1985, but also a covenant to repair the interior plasterwork of the property.

On receipt of a single joint expert’s report which stated that the damp was condensation but also due to water penetration due to defective damp proofing in the kitchen, the bathroom and the hallway, which exacerbated the condensation problem, Ms Herelle brought a claim for disrepair. The Single Joint Expert described the odour due to damp as amongst the worst he had encountered. Ms Herelle included damp and mould affected plasterwork in her claim and the historic disrepair to the windows.

SLFHA in the meantime drylined the living room and placed a positive pressure device in the cellar (which SLFHA retained and was not part of the demise). A further single joint expert report confirmed the initial findings of damp penetration to bathroom, kitchen and hallway exacerbating condensation in the property. Other reports commissioned by in 2007 and 2009 by SLFHA, which were in disclosure, also described penetrating damp in these areas.

Shortly prior to trial, SLFHA sought to challenge the Single Joint Expert’s findings and applied to introduce a new expert’s report, which was not yet available at the hearing of the application, which report was apparently to contradict the SJE’s findings in respect of the kitchen and bathroom. The application was dismissed with costs to the Claimant, but the Single Joint Expert was ordered to give oral evidence at trial and to be cross examined on the issue of defective damp-proofing.

Ms Herelle’s claim was for an order for specific performance, general damages for discomfort, distress and inconvenience, and a substantial special damages claim, principally for clothing, footwear, furnishing and other items damaged by damp and mould or by the odour. SLFHA had pleaded limitation, so the claim was limited to the period from February 2003.

At trial, in an extempore judgment, HHJ Welchman accepted the expert’s reports and oral evidence and Ms Herelle’s evidence. It was common ground that, following Quick v Taff Ely BC, there was no liability for condensation per se on SLFHA’s part. However, despite the expert’s evidence that condensation levels across the property had been exacerbated by the damp penetration, HHJ Welchman found that the Defendant’s liability was wholly limited to the areas of damp penetration due to the defective damp proof course; being the kitchen, bathroom and hallway, and any exacerbation of condensation in those specific areas only.

As the Claimant’s belongings which had suffered damage were largely kept in the bedroom and living room, SLFHA were not liable for that damage. There was accordingly no award for special damages.

The judgment further did not mention the Claimant’s assertion that plaster throughout the property was or had been defective due to being damp and mouldy and therefore fell under the repairing covenant. There was likewise no mention of the defective windows.

An order for specific performance was made in respect of the damp proofing works as set out in the SJE’s report, estimated to cost some £17,000, with temporary accommodation to be provided for the Claimant for the duration.

On quantum for general damages, Ms Herelle had argued for assessment on the basis of a nominal reduction in rent, assessed as a percentage, following Niazi Services Ltd v Van der Loo [2004] EWCA Civ 53, and English Churches v Shine [2004] EWCA Civ 434, or, if the Court disagreed, then on the basis of the Wallace v Manchester 30 HLR 1111 ‘unofficial tariff’. The average rent for the period of the claim was £3,495 per annum.

The Court awarded general damages of £5,000 for the whole period of the claim, some 6.5 years, (which amounts to £769 pa, 22.6% of the average rent). The extempore judgment did not explain the basis on which this amount had been arrived at.

On costs, the Defendant argued for no order as the Claimant had not succeeded on her sizeable special damages claim. The Court did not accept this but awarded the Claimant two thirds of her costs, excepting the previous costs orders in her favour, in view of the time likely to have been spent on the special damages claim.

We understand that Ms Herelle has applied for permission to appeal to the High Court, so we may get a High Court disrepair quantum case soon.

Thanks to Anthony Gold and Counsel Victoria Osler for the information about the case.

Tenancy Deposits
O’Brien v Hill Barnet County Court 22/09/2009
Mr O’Brien granted Mr Hill a 12 month AST on 9 June 2008. He served a s.21 Notice on 12 June 2008. On 2 July 2008, the landlord received the payment of the deposit from Barnet Council, which had agreed to pay the deposit on Mr Hill’s behalf, and the deposit was protected on 7 July 2008. Some time later Mr O’Brien brought accelerated possession proceedings relying on the June 2008 s.21. Mr Hill defended on the basis that the s.21 was invalid as at the time it was served there had not been compliance with s.213 Housing Act 2004.

DJ Silverman ordered that the claim be struck out on the basis that the s.21 was invalid, but gave the Claimant permission to restore the claim if he thought that the order should not have been made (!). Unsurprisingly, Mr O’Brien did apply to restore the claim and this time DJ Silverman made a possession order, accepting that no deposit had been received at the time of service of the s.21 and that therefore s.213 did not apply.

This surely has to be the right decision and the first strike out order is frankly a bit odd. It appears DJ Silverman wasn’t entirely happy with it at the time either.

Harassment and Unlawful Eviction Quantum
Odera v Iqbal Luton County Court 3 September 2009
The Claimant had an AST of a room in a three bedroom house with shared facilities, where she lived with her 11 year old daughter. The landlord allegedly harassed her throughout the tenancy by entering without warning. In January 2008, he gave her a defective Notice. The Claimant began looking for alternative accommodation. On 17 February, she backed her belongings and told the Defendant landlord she was on her way to pick up keys for new accommodation. The new landlord refused to give her the keys unless she handed over the full deposit. She returned to the premises. Later that evening, the Defendant and another man removed her belongings and put them outside the property. The Defendant dragged the Claimant and her daughter out of the bedroom, down the stairs and out the property. The police were called but accepted the Defendants word that the Claimant had no right to remain. The police asked the Defendant to store the Claimant’s belongings until the next day (Top work there, Luton constabulary). The Claimant stayed in emergency accommodation, then for 3 days with her sister in Watford. When she returned to pick up her belongings, she found them discarded in the back garden, soaked and rain damaged.

At trial, the Claimant’s evidence was accepted. Damages:
£500 for breach of covenant of quiet enjoyment and trespass for the two weeks prior to the eviction.
£1000 for the assault and method of eviction.
£1500 aggravated damages, particularly in view of Claimant’s daughter witnessing the assault and being assaulted.
£1000 exemplary damages as the landlord sought to increase his income by letting the property as a whole.
An inquiry into special damages – later settled at £750.

Cashmere v Walsh, Downing and Veale Central London County Court 27 October 2009
The Claimant had an assured tenancy of a flat in Docklands from 1990. In 2000, Downing bought the flat as bare trustee for Walsh. Veale was Downing’s mother and a business associate of Walsh.

Between 2000 and 2003 there was minor disrepair at the flat (defective light fitting, non functioning storage heater). There was further disrepair from 2003 onwards – a further non-functioning heater, broken handle on the toilet cistern following a refurbishment of the bathroom, and poor floor covering in the bathroom. The Claimant began spending more time at his girlfriend’s home. Downing and Veal promised to carry out repairs. In December 2007 they asked the Claimant to move out for the duration of works. The Claimant moved out and allowed the landlord to clear the flat of his belongings which were piled in the corridor. The works were completed in a week, including a new front door and lock. When the Claimant asked for a copy of the key he was told he could not have it because there were rent arrears. After being turned away by the Defendants on several occasions, the Claimant engaged solicitors. Pre-action letters received a response from Walsh saying that he was now the owner of the flat and had a new tenant in. On this basis an application for re-entry was not made. The annual rent was £10,920

On a claim for damages, the Court acknowledged that there were ‘historic’ rent arrears of about £7,000 and that the Claimant had caused noise nuisance to his neighbours, but neither of these were the reason for the eviction. The Defendants had chased housing benefit, it was not until the locks had been changed that they demanded payment from the Claimant personally. The true reason for the eviction was the desire to sell the flat, which was achieved after the eviction. Damages under s.27 and s.28 Housing Act 1988 were appropriate, without deduction under s.27(7)(a). Damages on this head £47,000 against Walsh.
Disrepair – £9,200 (4% of rent for the first 3 years; 15% of rent for the next 5 years).
£8,000 against Downing and Veal for their part in the deception and the refusal to hand over keys, which amounted to trespass. The Claimant had taken over 18 months to find suitable alternative accommodation.
£500 for failure to return a deposit.
£6,515 against Walsh and Downing for the loss of the Claimant’s belongings, which were never recovered.
Aggravated damages of £10,000 against all three Defendants. The Claimant had been duped into handing over the keys, even assisting in the removal of his belongings. His belongings had been dumped and the Defendants never told the Claimant where they were. The Defendants has lied about the whereabouts of the belongings to the Claimant’s solicitors, had denied the eviction and denied control over the flat at the relevant time. They had also lied about a new tenant being in place.

Introductory Tenancies
Plymouth City Council v Hill Exeter County Court, 6 November 2009
Mr & Mrs Hill were introductory tenants. Following a valid s.128 Housing Act 1996 notice on grounds of rent arrears, a possession order was made. Plymouth applied for a warrant and a bailiff’s appointment was set. The Hill’s sought further time to pay the arrears and applied to suspend the warrant. A DJ ordered the warrant to lie on the file, as an administrative act. There were two further applications for bailiff’s appointments, two further applications to suspend and two further orders that the warrant lie on the file. At a further hearing, some 5 months after the date of possession, the DJ ordered that the warrant lie on the file for 21 days pursuant to his powers under s.123 County Courts Act 1984. Plymouth appealed on the basis that the power to order the warrant lie on file did not exist, or if it did, the DJ could not suspend execution of the warrant beyond the 6 week period specified in s.89 Housing Act 1980.

Held by the Circuit Judge:
The Court could hear the appeal although the outcome was now academic.
The DJ was exercising a judicial power, not an administrative one.
The power to order that the warrant lie on file in this case did not exist.
The correct power was the one to suspend and this was limited to being up to 6 weeks under s.89 HA 1980 and there was no judicial or administrative power to delay it after that time.

As ever, thanks to Jan Luba QC and HHJ Madge for the updates.

Why yes it was. All 584 pages of it. But amid the headlines about scrapping CFA success fees and recoverable ATE insurance premiums, introducing contingency fees, and of course fixed costs for the fast track, for housing lawyers it comes down to a few paragraphs which largely amount to… wait and see. Here, filleted for your ease and comfort are what look like the key bits to me.

Jackson LJ notes that housing law is a hideously complicated mess (my paraphrase), that this is likely to push up litigation costs, and that the Government proposes to do nothing about it, despite the best efforts of the Law Commission.

Chapter 26 Housing Cases Recommendations 7.1

(i) The Government should reconsider undertaking a simplification of substantive housing law, as proposed by the Law Commission in 2003, 2006 and 2008.
(ii) Where a landlord could use PCOL to issue possession proceedings but chooses to issue manually, he should only be able to recover an amount equivalent to the PCOL issue fee.
(iii) The Rent Arrears Protocol should be amended in order to set out what steps should be taken by landlords, so as to comply with their obligations under ECHR article 8.
(iv) Paragraph 24.2 of the Part 52 practice direction should be amended in order to set out what categories of documents should be lodged by the respondent in homelessness appeals and when these should be lodged.
(v) Consultation should be carried out on the proposal that where a housing claim is settled in favour of a legally aided party, that party should have the right to ask the court to determine which party should pay the costs of the proceedings.

Overall, all possession claims in the fast track should be fixed costs (as most are already) but as for the right level of fixed costs, see below…

Judicial review Chapter 30: Recommendations at 5.1

(i) That qualified one way costs shifting should be introduced for judicial review claims.
(ii) That if the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant’s costs.

Nuisance Chapter 31
Aside from the general points that there should not be recoverability of success fees or ATE insurance premiums, both civil nuisance claims and statutory private prosecutions are pretty much left alone. Of course there is no legal aid for an EPA prosecution, so any success fee would have to come out of the client’s damages as a contingency fee.

But on the big points – fast track fixed fees for disrepair claims – we are left in the dark, at least for now:

Chapter 15

6.12 The position at the facilitative meetings. The data available at the facilitative meetings were insufficient for the purpose of producing any matrix of fixed costs in respect of possession claims or HD claims. Concern was expressed by the participants that there were so many variables that fixing costs was impossible.
6.13 Housing disrepair cases. HD cases are a matter of particular concern, because claims with a value between £1,000 and £5,000 fall within the fast track. This is the only area of litigation (apart from personal injury) where, for policy reasons, such low value claims are included within the fast track.
6.14 Possession claims. In possession claims it is normally the landlord who obtains an order for costs. In my view, there would be benefits for both parties if the costs of such proceedings (where they fall outside the regime of CPR rule 45.1) were fixed. It should also be noted that in their recent report “Turning the Tide” AdviceUK, Citizens Advice and Shelter recommend that: “The Ministry of Justice should consider introducing a fixed fee regime for mortgage possession claims”.
6.15 Professor Fenn is currently exploring the possibility of obtaining further data on housing cases. He anticipates completing this exercise and providing an analysis of any such data by 31st March 2010. Subject to what the data may reveal, it is my intention to invite the submissions of both landlord and tenant organisations upon that data before recommending any matrix of fixed costs for fast track housing cases. I hope then to be in a position to recommend a matrix of fixed costs for possession claims and HD claims, drawing on the advice of the Senior Costs Judge and the CJC.
6.16 In recommending any matrix of fixed costs for housing cases, there are two matters which I shall take into account. First, lawyers who specialise in housing depend upon recovered costs in cases which they win, in order to cross-subsidise their other activities. This is because much of the work of those solicitors comprises providing advice and assistance to clients on legal aid. Legal aid rates for advice and assistance have fallen far behind inflation in recent years, although the move to standard fees may have allowed for some efficiency savings. The second matter is the availability of solicitors firms and law centres which are willing and able to undertake housing work in areas where tenants need their services: see PR [Preliminary Report PDF] paragraphs 31.2.6 and 31.5.1. It is important not to set fixed fees at a level which exacerbates that problem.
6.17 An alternative approach to low value housing disrepair claims. An alternative approach to low value HD claims might be to set up an ombudsman scheme to deal with such claims. This is the sort of area where, traditionally, ombudsman schemes have proved highly effective: see “Civil Justice in England and Wales – beyond the courts. Mapping out non-judicial civil justice mechanisms” by Dr Magdalena Tulibacka. If such a scheme is introduced and proves successful, it might then be possible to make £5,000 (rather than £1,000) the boundary between the small claims track and the fast track. This would bring HD claims into line with all other litigation apart from personal injury claims. This is not a recommendation which I make, because the proposal was not canvassed in the Preliminary Report. It is simply a matter which I raise for possible future consideration.

So, this boils down to ‘there should be fixed costs for disrepair (and possession) but we have no idea what those costs should be. We’re going to try to get some more data and tell you in a few months.’

Actually getting the data, with sufficient detail and comparison points to make it of use in the statistical number crunching, will, I humbly submit, be a nightmare. This is simply not a standardised production-line field, unlike say fast track PI. Even if the detailed figures, end points and outcomes can be obtained, I suspect (on a purely anecdotal basis, obviously) that there won’t be a neat pattern with a few outliers.

This might, just maybe, be the sound of fixed costs for fast track disrepair running out of steam as a practical proposal. Or I may be being ludicrously hopeful.

And of course, the report was commissioned by the Judiciary – the Master of the Rolls. Whether the MoJ take it and implement some or all is another matter entirely.

Mr Carroll is a Nottingham based landlord, apparently with quite a few properties, including student lets. Unfortunately, Mr Carroll chose to ignore quite a few of the basic requirements of being a landlord, little things like maintaining properties, obtaining certificates of electrical safety, keeping fire safety standards and, as as the piece de resistance, not illegally evicting his tenants. And of course obtaining those pesky HMO licences.

In a prosecution, apparently brought by Nottingham Council, over two properties let to students, the Court heard that the properties were without the required licence. The Court was also told about black mould on walls, no certificate of inspection for the electrical fittings, loose carpets on the stairs, a damaged sash window and hole in a floorboard. There was also a mouse infestation Two students were illegally evicted when Uncle Tony changed the locks, stating that they would not be let back in until rent due from another three students, who had left the property, was paid. It was a joint tenancy and £1,500 was owing. Uncle Tony continued to refuse to let them back in when the University contacted him. Eventually the police were called and helped the students recover their property (but not, of course, regain access to the property, that would be altogether too much to ask).

Another property, also occupied by students, had no licence and a washing machine and freezer in the hallway blocking a stairwell that served as a fire escape. A smoke alarm had been disconnected and electric wiring had not been tested within the last five years.

Uncle Tony pleaded guilty to 17 charges. He was fined £14,700 and had £37,500 in rent payments confiscated for the period the properties were unlicensed. He was ordered to pay costs of £10,000. For the illegal eviction he was sentenced to four months imprisonment, suspended for a year, and probation.

Uncle Tony’s mitigation, as put to the Court, was that he ran the business on his own and had literacy problems. Literacy problems clearly extend to not being able to see disrepair. Oh and he had spent £15,000 on work to the properties subsequently. Quite how having done the work required to avoid further prosecution is mitigation escapes me, but then I am but a civil lawyer. Speaking of which, is there a civil claim underway? Should be.

So, for the sake of something like £16,500 and some HMO licence fees, Mr Carroll is down £61,500 and has a friendly probation officer to visit. A poster boy (at 66) for the private rental sector. And well done Nottingham Council, if it was you prosecuting.

It is with the latter that we begin
tolata mother and daughter inheritance tax and succession with a will
Just how much can you stuff into one short question? And without giving us any idea what is actually going on?

rehousing on asthma grounds lambeth
I’m resisting the temptation to make the obvious joke about Asthma Grounds being a surprisingly pleasant low rise estate. If your current housing is having an impact on your asthma, you may get a medicial priority, but as far as I recall from Lambeth’s allocation scheme, it is not likely to be a high priority. You should see a local independent housing advisor, as a lot depends on the specific details.

not paid rent from and onwards
Are you boasting imprecisely or complaining without detail?

tenant gas inspection statutory nuisance
If you mean can a gas inspection be a statutory nuisance, no. If you want a gas inspection and the landlord isn’t carrying one out, this is a serious breach of tenancy conditions and potentially the landlord’s repairing obligations if there is a problem – in which case run, don’t walk, to your nearest housing solicitor, local authority tenancy relations team or housing advisor. If, and I am scratching my head over the statutory nuisance here, the issue is another tenant refusing access for a gas inspection in their property which is affecting yours, then their landlord is the first point of contact and possibly the local authority environmental health and/or the gas co.

charging orders declaration of trust deed
Eh? Trying to avoid a charging order or assign the benefit of one?

music 3 am asb warning
Not bloody surprised. And possibly from the same person, we have…

noise abatement order defence student
Being a student is not going to help. There is no ‘young, irresponsible and drunk much of the time’ defence in the statute.

delegated authority to issue possession proceedings
No – not by an agent or another behalf on of the landlord unless the person is the landlord’s legal representative (meaning a solicitor authorised to sign the claim on the landlord’s behalf). If a power of attorney is involved – maybe and perhaps, but if so only with leave of the court.

will i get evicted for unlawful subletting of shared ownership?
Quite possibly. Depends on the precise terms of the lease, but it is likely to be either a lease or an assured tenancy and under either a sublet is likely prohibited. You appear to know that this is the case as you call it unlawful, If it is, then it is a significant breach of lease/tenancy and the landlord could probably seek possession.

unlawfully evicted illegal subletting
I think the answer is in the question. Unless, of course, you were thrown out without a possession order having been obtained against the tenant who unlawfully let to you…

i am a tennant in a house where the bank have a posession order can i make them an offer on the property uk
You can, of course. There is absolutely no guarantee that they will take any notice of you whatsoever.

quick access to adverse possesion in luton
It is no quicker in Luton than anywhere else. 10 years now. You’ll just have to wait.

plural of criterea
What are they teaching the children in school these days? Any fule no it is criterion.

dyslexics could not understand legal contracts
Words fail me.

southwark housing act regarding repair before tenancy commence
There is a legal requirement that a property be fit for human habitation when it is let as a furnished property, but this is a pretty low threshold in any event. Otherwise, repairs are not enforceable (assuming that they are repairs for which the landlord is liable under the tenancy agreement and s.11 Landlord and Tenant Act 1985) until the tenancy has begun. However, it is worth checking Southwark’s tenancy agreement, allocation policy and other documents for any statements of the minimum standard of housing to be provided. These may be useful. Off the top of my head and without them in front of me, I couldn’t say.

the courts have given me a suspended sentance for rent arrears what does this mean
That you got a really, really tough District Judge? I presume you mean suspended possession order – if so, it means make the payments set out in the suspended order or your landlord can ask the court for a warrant to evict you. Until May 2009, it would have meant a lot of other things as well, none of them good, but at least now you remain a tenant.

when did was secure tenancy introduced
1980, it did was.

i have been living as a tolerated trespasser for 6 years can i be evicted
The good news is that you aren’t a tolerated trespasser any more and haven’t been since May 2009 – you have a ‘replacement tenancy’ of some kind. The bad news is that the original possession order is still there, so if you haven’t paid off the rent arrears – if that is what it was – you still could be evicted, but your landlord would probably need to apply to the court for permission to apply for a warrant, as the possession order is over 6 years old.

first essex high court
There may be High Courts outside London now, but this is just a little ahead of its time. The Billericay High Court is not sitting yet…

can sister claim possession of my property
I have absolutely no idea. I am not acquainted with your sister or your property or the relationship between them.

how many weeks make a year
There are limits to our public service remit. Out of curiosity, I googled this. NL is at the bottom of page one – for a post called ‘How many weeks make 8′. Above NL are about 10 links that all say ‘52, idiot. I can’t believe you are asking this’. So this person clicked on the link to NL…

We’ve covered most of the cases here, but there are some others that are well worth a mention…

Brunskill v Mulcahy [2009] EWCA Civ 686 (no link)
This was a claim under S.11 Landlord and Tenant Act 1985 for personal injury from a fall supposedly due to moss or slime on the front steps to the property. At first instance, presence of the moss was held not to be a breach of the landlord’s S.11 duties. The Claimant’s appeal to the Court of Appeal (or possibly the application for permission) was dismissed.

Then a combined High Court and Court of Appeal case:
Bole & Anor v Huntsbuild Ltd & Anor [2009] EWHC 483 (TCC)
We’d missed this one from the Technology and Construction Court and on appeal. A house had been built for the claimants by the defendant builders and second defendant structural engineers. It had been built with inadequate foundations. C claimed it was thereby unfit for habitation and calso claimed against the structural engineers under s.1 Defective Premises Act 1972.

The Court held:

• Unfitness for habitation was a matter of fact
• It related to defects making the dwelling dangerous or unsuitable for the purpose, not minor defects
• A defect in one part of the dwelling may render the whole dwelling unsuitable for habitation
• Defects may render the dwelling uninhabitable even if not evident at the time the dwelling was completed.
• The effect of the defects as a whole must be considered.
• Considering the defects as a whole, the property as uninhabitable under DPA s.1 as the unstable foundations resulted in movement, cracking and heave. It was potentially dangerous.

The Court ordered remedial works of £214,116.91 and general damages of £4,500 (agreed).

The Structural Engineers appealed to the Court of Appeal, [2009] EWCA Civ 1146 (no link). The appeal was dismissed.

Whether or not a dwelling is unfit depends on the facts of the case.
It is relevant if it is necessary for the occupants to leave the property for a long period while remedial works are carried out. When the judge below referred to unfit for purpose, it was clear that he meant unfit for habitation – the purpose of a residential dwelling being safe and convenient occupation. There was no obligation to consider each defect individually, where the question before the Judge was whether the whole dwelling was unfit.

The Judge was also entitled to conclude that the cost of remedying all the defects was attributable to the defective foundations and a foreseeable consequence of the breach of DPA s.1. He was not limited to awarding the costs solely of making the dwelling fit for habitation.

And then some County Court cases on quantum:
Gorman and Lane v Lambeth LBC, Lambeth County Court, 1 November 2009.
The claimants were leaeholders of a 1 bed ground floor flat in a converted terrace. In 1994 they had reported cracking to the bricks over a rear bay window due to subsidence. Over the next 7 years Lambeth inspected and sent surveyors, who recommended underpinning works. Nothing happened apart from inspection pits being dug and wooden supports put in. Further consultations in 2004 resulted in no works but some further supports. The cracks made the whole flat draughty, cold and damp. In 2005 the Claimants could take no more and sold to a developer for a substantial undervalue.

The Claimants claimed for loss on sale and other loss, damage inconvenience and distress. A joint expert found the undervalue on the sale to be £100,000. The claimants claimed the 100K, plus general damages of £22K, special damages of £1500 and interest over 3 years at £25K.

The claim was settled at the door of court for £120,000 plus costs.

Aslam v Ali, Birmingham County Court, 10 June 2009.
The Claimant, his wife and eight children lived in a 4 bed house. From 2003 to 2006 the central heating only worked in two rooms. The windows were rotten and draughty in the kitchen and bathroom. There was penetrating damp and defective plaster in kitchen and hallway. During the winter, the whole family had to sleep in two rrooms and use extra blankets. The boiler was replaced in 2006. Windows were replaced in kitchen and bathroom by the tenant but the other defects remained.
Damages:
50% of the rent of £60 per week from 2003 to 2006
33.3% of the rent from 2006 to 2009
Special damages including costs of extra blankets and the replacement windows and doors.

Smyth v Farnworth, Wigan County Court, 3 September 2009
Private tenancy. The tenant suffered water penetration to a conservatory throughout the tenancy, a defective boiler from July to November 2007, a missing gutter and damage to the bedroom ceiling following a leak – itself promptly repaired. There was also a five week period of intimidation of the tenant, including threats of eviction.
Damages:
£1,000 per annum for the leak to the conservatory (!!!)
£1,000 per annum for the defective boiler
£2,200 total for the other defects,
making a total of general damages of £4,700
£500 for the intimidation
£5,000 for exacerbation of the tenant’s depression through disrepair and the intimidation
£3,500 for exacerbation of her son’s asthma over two years.
(If the solicitors, or Counsel Sonia Birdee are reading this, what was the rent? Seriously, we need to know this.)

And lastly an HSE prosecution (hurrah – that is a whole two this year that we know of against private landlords).
Health and Safety Executive v Hussain, Stafford Crown Court, 20 February 2009
The Defendant rented out 12 properties, 9 of which had gas appliances. Only two had current gas safety certificates. On inspection a number of appliances were found to be immediately dangerous and others were at risk. The Defendant pleaded guilty to specimen charges under the health and Safety at Work Act 1974 s.2(2). He was fined £40,000, ordered to pay £44,500 costs, with 18 months imprisonment in default of payment.

R(Gardiner) v Haringey LBC [2009] EWHC 2699 (Admin), [2009] All ER (D) 301 (Oct).
Or ‘everything old is new again’

From the full judgment: Ms G. had applied as homeless to Haringey, who found she was not homeless as she had accommodation available to her in Columbia. Ms G requested a review on the basis that that accommodation was not suitable for her child, who had a preliminary diagnosis of autistic spectrum disorder and severe and extensive care and support needs not available in Columbia. The review withdrew the decision. A further review upheld the decision, stating that Ms G’s decision to return to the UK, without definite accommodation, to seek care for her child was ‘reckless’. The different level of available care for the child was acknowledged but was not, in itself, sufficient reason to leave the Columbia house and come to the UK without definite accommodation.

A subsequent s.204 appeal upheld the decision. Ms G applied again 4 months later, supplying further information about her child’s situation and condition, including specialist evidence that the child would be very badly affected by instability and that she had improved considerably under current specialist care to the extent that she was now ‘thriving’ beyond expectation. The specialist’s letter stated that a return to Columbia would have a significant negative impact. Haringey refused the application on the basis that there were no new facts. They had already acknowledged that facilities were better than in Columbia. Ms G applied for Judicial review.

Held:
Following Maloba v Waltham Forest LBC [2008] All ER 701 (our post here), whether accommodation was suitable was no just a matter of its size and structural quality. The educational and medical needs of the child were material considerations. The Guidance, at para 6.27, states that a renewed application must be treated as a fresh application if there are substantive new facts. The significant issue was not now the difference in the level of available facilities, but the impact on the quality of life for the child. The Council had failed to look beyond the level of facilities available and consider the effect on quality of life. The reports submitted with the renewed application did amount to new facts, specifically on the severity of the likely degree of effect a return to Columbia would have on the child.

And then…

HSE v Helen Jayne Beckett Grimsby and Cleethorpes Magistrates Court

Various commentors on this post suggested that the HSE was less than enthusiastic about prosecuting private landlords over breaches of the gas safety check rules. So it is with pleasure that we can point to this prosecution (HSE press release)

Ms Beckett was a private landlord. Between 25 July 2007 and 5 January 2009 (about 18 months), Ms Beckett failed to ensure that a gas fire in the rented property she owned at Flat 1, 22 Sea View Street, Cleethorpes, had been checked for safety. Despite being served with an improvement notice by HSE in November 2008, she failed to get the necessary checks carried out by the required date.

She pleaded guilty at the Magistrates to breaching Regulation 36(3) of the Gas Safety (Installations and Use) Regulations 1998 – the 12 monthly check – and of contravening a previous improvement notice. She was fined £1,000 with £1,500 costs.

Now, let that not be a one off, pour encourager les autres, kind of prosecution and let others follow Yorks and Humberside’s lead.

Since the beginning of replacement tenancies on May 2009, there have, rather surprisingly, not been any reports on cases involving the Housing and Regeneration Act 2008 Schedule 11 s.21 – when the new tenancy and the original tenancy are to be treated as the same and continuous for the purposes of a relevant claim (for breach of tenancy condition or statutory duty). Now, we’ve heard about one such case.

For an ex-tolerated trespasser with, say, a disrepair claim extending back over the period prior to May 2009, there appear to be two routes to recovering tenancy for the whole period since the possession order and with it the right to claim for breach of condition of tenancy. One is to make a s.85 Housing Act 1985 application to postpone possession or for discharge within the original possession proceedings; the other is to apply within issued disrepair proceedings for an order that the replacement tenancy to be treated as the same tenancy and continuous under s.21(3) Schedule 11 HRA 2008. Of the two, the s.85 application has other benefits for the tenant, for example by altering a previous possession order so that the landlord can’t issue a warrant without notice.

However, there are always complications. In LB Lewisham -v- Litchmore, there was a disrepair counterclaim to a fresh possession claim by Lewisham on the replacement tenancy, but the Defendant had been a tolerated trespasser for some years before the replacement tenancy began in May 2009, as the result of a previous possession order. The disrepair counterclaim was limited by the lengthy period of tolerated trespasser-hood. An application for an order under s.21(3) was made by the Defendant for the replacement tenancy to be treated as the same and continuous. Lewisham opposed the application.

The Court made the Order that the replacement tenancy be deemed the same tenancy and continuous from the date of possession in the original order, so that the counterclaim could include the full period of alleged disrepair. Lewisham were granted permission to appeal.

Interesting to see that a Court is prepared to exercise the s.21 discretion. S.21(3) states:

In proceedings on a relevant claim the court concerned may order that the new tenancy and the original tenancy are to be treated for the purposes of the claim as—
(a) the same tenancy, and
(b) a tenancy which continued uninterrupted throughout the termination period.

Will this discretion be effectively the same as that exercised under s.85 Housing Act 1985?

We’ll keep our ears open for news of Lewisham’s appeal.

[Thanks to Charlotte Collins at Anthony Gold.]

In Elvington Park Ltd and another v City of York Council [2009] EWHC 1805 (Admin), Silber J considered the content of a noise abatement notice. The appellants had been convicted by the Magistrates’ Court for causing a  noise nuisance, contrary to s.79(1)(g), 1990 Act, by allowing their airfield to be used for Formula 1 car testing and other motor-vehicle events. They appealed, both to the Crown Court and then to the High Court, against the service of the noise abatement notice. They contended that it was irrational to serve a notice which did not specify the steps that they were expected to take to prevent further noise nuisance.

Section 79(1), 1990 Act provides that it is the duty of every local authority to inspect for statutory nuisances and, where a complaint is made, to take steps to investigate that complaint. If a nuisance is found then, by s.80(1), the authority must serve an abatement notice which must require the abatement of the nuisance and / or require the execution of works or other steps, necessary for the purpose of preventing the nuisance. Failure to comply with a notice gives rise to criminal liability if prosecuted by the authority (s.80(4)).

In the present case, the notice which was served required the appellants to “take the steps necessary to prevent noise from motor vehicles and associated activities causing a statutory nuisance at other premises” without further particulars.

The appellants argued that, having chosen to specify that works or other steps were necessary, it was incumbent on the authority to provide details of the steps that it considered should be taken.

Silber J agreed and held that (at [36]) “… if an abatement notice requires not merely abatement of noise but also steps to be taken, they should be specified but if as in the present case, the notices did not do so, they are invalid.” If this were not the case, then the person served with the notice was liable to criminal prosecution without knowing what was expected of them in order to avoid criminal prosecution.

In light of that finding, it was unnecessary to consider any further challenges to the notice. His Lordship did, however, deal briefly with a second aspect of the irrationality challenge to the notice and dismissed it on the facts of the case.