Tag Archive for 'mandatory possession'

Shared Ownership - Midland Heart with benefit of transcript

Published
by
NL
on 24 September 2008
in Housing law
. 0 Comments

The earlier post on this shared ownership possession case, Richardson v Midland Heart Ltd, (November 2007 Birmingham) attracted a lot of comment, some of it excitable and ill-informed (and much of that from me). Nearly Legal now has a copy of the judgment, and the benefit of time and reflection to go on.

Before we start, this was a County Court case, and apparently the appeal in this case is due to be heard on 5 & 6 November 2008. Also, apparently Midland Heart has not made the ‘voluntary payment’ of initial premium less arrears and costs (so not a lot) that was touted in previous press reports. (Thanks Michael Paget.)

The facts are largely as previously mentioned. Ms Richardson paid a premium of £29,500 for a 50% shared ownership lease in 1995. The freeholder was Focus Two, later Midland Heart Ltd The lease gave a rent of £1,456 per annum (with indexed increases). There were staircasing provisions to enable Ms Richardson to acquire further shares up to 100%, each time with a reduction in rent. Once she had acquired 100% of the shares, she could acquire the freehold. Ms Richardson did not exercise the staircasing provisions.

In 2003, Ms Richardson had to leave the property, following threats to her family. For a while housing benefit paid the rent on the property and her refuge place, but after a year this ended in Feb 2005. Arrears built up. At the end of Aug 2005, Ms Richardson decided to sell the property. Evidently Midland Heart, who would most likely have had the right of first refusal or to refuse, agreed to a sale and valued the property at £151,000. The property did not sell. In October 2005 (some two months later!) the HA issued possession proceedings, having served Notice on 15 Sept 2005 (a fortnight after agreeing to the sale!).

The Claim was under ground 8 Sch 2 HA 1988 and in Jan 2006 an outright order made on the basis that Ms Richardson was an assured tenant. In Dec 2006, Ms Richardson brought proceedings for a declaration as to the extent of her interest in the property and an order for sale or account for 50% of the proceeds of sale.

Ms Richardson, via Counsel Michael Paget argued that:

She had two tenancies, a long leasehold, subject to forfeiture, and an assured tenancy, protected by (and subject to) Housing Act 1988. The possession proceedings had terminated the assured tenancy, but not the lease. No notice under s.166 Commonhold & Leasehold Reform Act 2002 had been served and ‘forfeiture’ was not ticked on the claim form, so there was no proper procedural termination of the lease.

The Court did not accept the ‘two tenancies’ argument. There was one - of term certain - which fall under HA 1988 as an assured tenancy. No exceptions applied. As an assured tenancy, possession via forfeiture is ruled out - possession can only be under one of the grounds of the act. However, for possession for rent arrears, the HA 1988 provides that it is sufficient for the lease/tenancy to include provision for forfeiture for arrears, which Ms Richardson’s lease did.

S.166 & 167 CLRA 2002, on the requirement of a prescribed sum for arrears before forfeiture was possible did not apply as the definition of a ‘long lease’ in s.76 required a ‘total share’ of 100% for shared ownership leases. Ms Richardson’s was only 50%. In any case, the arrears were too large for s.167 to halt forfeiture. Additionally, there was no need to tick the forfeiture box on the claim form , as this was, strictly, a claim for possession.

There was no mortgage at the time of the possession hearing, so the requirements of  Practice Direction 55.2.4 on identifying mortgagees, etc. did not apply.

Secondly Ms Richardson argued that there was a trust. She conceded it was not a trust of the leasehold, but argued that the freehold was held on trust by the Housing Association for itself and Ms Richardson.

The Court did not pay much attention to this, stating simply that there was no foundation for the argument. The relation was simply that of landlord and tenant, with an option to obtain the freehold via staircasing, which was not exercised.

The Court said it was troubled by its own finding, particularly given the windfall that resulted for the Housing Association, and in view of the Housing Association’s actions at a time when they knew Ms Richardson was attempting to sell and were supposedly pursuing that sale on her behalf (and look again at the time scale above, two weeks after agreeing to sell there is service of Notice and a possession claim brought at the earliest opportunity after that. Some might consider that cynical behaviour, given that the HA ended up with a property worth £151,000). But that was the law.

I have noted in comments before that the apparent threat to a mortgagee’s security raied by this case is mitigated by the usual form of these leases which requires a lender to be notified by the landlord prior to any possession/forfeiture proceedings being brought for rent arrears. Thus the lender can pay off the arrears, secure the interest and either add the arrears to the loan or bring repossession proceedings against the tenant themselves. So that is cleared up. But this does still mean that the tenant’s interest, and the significant premium paid for it, can simply disappear with no remedy or recourse in the face of Ground 8 proceedings.

On reflection, I am not wholly convinced by the Court’s dismissal of a trust argument. I have no strong counter argument as yet, but there are a number of factors that go against the ’simple relationship’ of landlord and tenant that the Court found. For instance, the Land Registry registers the lease with a ‘no sole disposition’ restriction, typically entered for ‘tenants-in-common’ trusts. If a shared ownership property is sold, then the division of equity is in accordance with the ’share’ (I believe), and so on. It will be very interesting to see what the appeal brings up.

Lack of ownership in shared ownership

Published
by
NL
on 12 September 2008
in Housing law
. 22 Comments

[Edit 15/09/08. It now looks like the following judgment is a) being appealed shortly and b) may only have been a County Court judgment, not High Court - this latter point is not clear but reliable sources say County Court]

[Edit 18/09/08.  In the comments to this post, a few people, mostly being me, were wondering why any lender would touch shared ownership if their security could vanish this way. I've had a look at a few shared ownership leases now. They typically carry a clause requiring the landlord to notify the lender of any forthcoming possession/forfeiture proceedings for rent arrears. So the lender has the opportunity to pay off the arrears, protecting its security, and then take possession proceedings against the tenant/leaseholder themselves for breach of mortgage conditions. So there is a measure of security for the mortgagee written in, which is presumably why lending still takes place.]

[Edit 23/09/08. Updating post, with benefit of transcript here.]

I may well be a little late to the party on this one, having only picked up on it via a report in September’s Legal Action, but this is a very significant case for the increasing number of shared ownership occupiers - a number that may well sky rocket as the result of policy on rescuing people from mortgage arrears.

Richardson v Midland Heart Limited High Court (Chancery) 12/11/2007, unreported, concerned a shared ownership lease taken out in 1995. Accounts of the case can be found here and, a more detailed report from Forbes Solicitors here. There is also apparently a detailed report in [2008] NLJ 327, which I will look up on Monday.

The facts were as follows.

Ms Richardson acquired a 99 year shared ownership lease from Focus Two HA (later Midland Heart). She paid £29,500 - 50% of the then market value - with a rent of £1,456 pa. Following personal difficulties that meant she could not live in the property for over a year, housing benefit stopped and the rent wasn’t paid. Ms Richardson tried to sell the property, now worth £151,000. Midland Heart sought possession under HA 1988 Sch 2 Ground 8 on the basis on 16 months rent arrears.

At County Court, a request for an adjournment was refused and an outright possession order made.

Ms Richardson made an application to the High Court for a declaration of her interest in the property and either an order for sale or an accounting for 50% of the proceeds.

Ms Richardson argued that
a) there were two tenancies - an assured tenancy under HA 1988 and a long lease subject to forfeiture. The possession order had only ended the assured tenancy.
b) The freehold of the property was held by Midland Heart on trust for itself and her on 50% beneficial interest. Even if the lease had been terminated, she was entitled to return of the capital payment in respect of her beneficial interest.

The High Court held that:

The capital payment did not purchase a half share of the property. The relationship was that of landlord and tenant not trustee and beneficiary. Ms Richardson had a right to lay claim to the freehold, but only if she had followed the staircasing process to ‘purchase’ increased shares of the property. She had not done so. Her interest was restricted to that of the lease.

The lease was a 99 year term certain. There were not two tenancies but rather one. The tenancy created fell under s.1 HA 1988 as it was a tenancy of a dwelling house let as a separate dwelling to an individual who occupied it as her only or principal home. It did not fall within any of the exclusions. It was therefore a fixed term assured tenancy. As such, the provisions of Ground 8 applied. the possession order was validly made, the lease determined, and her interest in the property was extinguished.

Apparently Midland Trust did repay Ms Richardson the initial premium, but this was entirely voluntary. There was no increase to match the increase in the value of the property, but there was no requirement to pay anything.

There is no news of any appeal.

So, just to be clear, a shared ownership lease, at least if it doesn’t fall outside the HA 1988 limits which many won’t, is functionally nothing more than an assured tenancy with an option to eventually purchase the freehold, or, I suppose, at least a 100% interest in the lease if a leasehold property. The premium for the percentage of the lease does not bring about any greater or other interest in the property.

Practically, the only difference between this and the dodgy sell and rent back schemes floating around is the difference between an assured and shorthold assured tenancy, if you don’t count the possibility of freehold/100% purchase eventually.

After some rapid education (thanks Francis), not having actually dealt with shared ownership lease possession proceedings, this makes a certain sense.

A residential lease which meets the requirements of Sch 1 Part 1 HA 1988 on rateable value (below £1500 in London, below £750 elsewhere) and rent level (more than two thirds of the rateable value) will be an assured tenancy.

This means that s.5(1) HA 1988 prevents the lease being ended by forfeiture proceedings, it has to be via HA 1988 grounds. HA 1988 s.7(6)(b) says that there has to be provision in the tenancy agreement for the tenancy to be ended on that ground (but a provision for forfeiture for non-payment of rent suffices to enable a ground 8 possession).

This means that the forfeiture for arrears provisions in shared ownership leases are unenforceable, because forfeiture is excluded as a valid means of ending the tenancy, but the provision is sufficient to enable a ground 8 possession claim under HA 1988. Artesian Residential Investments ltd v Beck [2000] QB 541

Standard shared ownership leases do contain forfeiture on non-payment of rent provisions, but assuming the rateable value/rent conditions are met, which they may well be, those provisions are unenforceable by the forfeiture proceedings route, and s.138 County Courts Act 1984 provisions on relief from forfeiture are unavailable to the tenant.

Oddly, on registration of the shared ownership lease at the Land Registry in the name of the tenant, there is a ‘no disposition by sole proprietor’ restriction, which normally indicates a trust - typically a trust for tenants-in-common who are also title holders. Here its purpose is to ensure no sale without the landlord’s consent, but it would indicate that there are split definite beneficial interests in the property, which accords with the (say) 50% tenant interest of a shared ownership scheme. But what is being held in trust - perhaps the leasehold interest, rather than freehold - could be a messy point to take on appeal.

Comments on Malcolm in the Lords

Published
by
NL
on 29 June 2008
in Housing law
. 63 Comments

Oh dear, oh dear. That could have gone better.

I’m not going to go into great detail on the five separate judgments from the House of Lords in LB Lewisham v Malcolm [2008] UKHL 43, but I do want to look at where it leaves us and what the problems are with the judgments.

The headline result is that:

  • For an eviction to be unlawful due to disability discrimination under s.22(3)(c), the eviction must be for a reason that, in the mind of the landlord, is related to the disability.
  • To be discriminatory the treatment must be less favourable for a reason related to the disability. The comparator against whom the treatment is measured is someone who has acted, or not acted, in the same way but is not disabled. So, for example, someone who has rent arrears, or has illegally sub-let, if that is the position of the disabled person.
  • It is still possible (by a majority) to raise disability discrimination as a ‘defence’ against mandatory or ‘undefendable’ possession claims, but the circumstances in which this will be possible will be extraordinary.

This is a reversal of all the key points of the Court of Appeal judgment (see previous discussions listed below). What is worrying is the way in which the Lords approached the appeal and with it the impact of their decision, which will extend way beyond housing law.

Their Lordships are very concerned about the practical results of the Court of Appeal judgment. On a number of occasions, for example, it is said that X ‘is difficult to accept’ (para 14), or ‘very difficult to accept’ (para 28), or even ‘the unacceptability of these logical conclusions[...] suggests, or perhaps shows, that the conclusions must be based on an erroneous premise’ (para 29). This latter phrase indicates the problem with the approach taken by the majority, reasoning a posteriori to what the Disability Discrimination Act ‘must mean’. In doing so, they do considerable violence to the Act and to settled case law.

The issue is s.24(1) which defines discrimination for the purposes of s.22(3) - the eviction clause. S.24(1) reads:

For the purposes of section 22, a person (‘A’) discriminates against a disabled person if -

(a)  for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b)  he cannot show that the treatment is justified.

However, exactly the same formulation appears at s.5(1) - employment; and s20(1) - Goods and services. Their Lordships’ view of the meaning of s.24(1) therefore impacts on every other part of the act. Some of the judgments appear to be completely oblivious to this. Nine years of settled employment case law has just gone down the pan.

Baroness Hale’s judgment alone takes note of the broader issues of the drafting and intent of the Disability Discrimination Act. As she points out, unlike race and sex discrimination statutes, there is no indirect discrimination in the DDA, although it was undoubted intended to cover indirect discrimination. Baroness Hale suggests that this was because indirect discrimination would not extend far enough to cover ‘reasonable adjustment’ (see paras 73-75). She points out the history of the bill where the specific phrase at issue, ‘to whom that reason does not apply’ was introduced by amendment (para 79) and specifically to make the comparator a person who was not in the same position as the disabled person.

For this reason, Baroness Hale finds the Novacold interpretation was exactly what Parliament intended. There was no indication that the three instances of the same wording in the act should be treated differently.

The specific problem for services and premises - which was the provision facing the Lords here - is the very narrow range of possible justification for the alleged discriminator. Where employment related discrimination is open to a range of justifications for the treatment, the section on eviction only has the specific justifications set out at s.24(3). This means that s.22(3) has a more draconian impact than the same formulation of discrimination at s.5(1). This is bad drafting on amendment, certainly.

Baroness Hale points out that subsequent legislation, 2003 Amendment Regulations, left s.5(1) terms intact in the new s.3A(1), but added a new s.3A(5) which provides for direct discrimination where the disable person and the comparator are of the same ability. There is no possibility of justification for this.

What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible. [Edit. I have been rightly and firmly corrected by a large posse of employment and disability lawyers in the comments below. No it doesn't, because anything that is arguably direct discrimination will almost certainly be caught by s.3A(4) with s.3A(5) - no justification for unfavourable treatment on the ground of disability. Meaning that, until further cases or legislation that s.3A(1) is possibly absolutely pointless.]

The Court of Appeal held by a majority that no knowledge of the disability was required by the landlord for the eviction to be unlawful. On a strict construction of s.21(1) via Novacold, this seems right. However, a broad range of justification would mitigate the effects. Baroness Hale would rather see a close connection between the disability and the reason for the landlord’s behaviour. She suggests that an awareness, at least, of effect of a policy or action on a disabled person would be required (paras 84 - 85). She points out that showing a justification requires a knowledge of the disability. Baroness Hale’s eventual suggestion is in accord with the EHRC view - the Court should have discretion whether ot not to grant a possession order, having weighed up the facts and interests. The easiest way to achieve this would be an amendment under regulations to expand the list of available justifications to the landlord.

The cases would then turn on the closeness of the connection betwene the disability and the landlord’s reasons for acting as they did - the more obvious the connection between the disability and, say, rent arrears, the more difficult it would be to recover possession or rent.

Although not a wonderful solution, Baroness Hale’s is by far the least damaging and most sane. It would also have the merit of keeping discrimination ‘defences’ to possession alive in a broader, but not ridiculous, range of circumstances than the majority view. Unfortunately, she was in a minority of one in her reasoning, even if she came to the same result.

The Lords have quite obviously gone against the intent of Parliament and left a hell of a mess. The effects of bad drafting are for Parliament, or the Government via regulations to put right. Quite what happens now is anyone’s guess. One would hope for a prompt response by Parliament to sort out the problem, but one might hope in vain.

[I should point out that in all of this, I agree with Francis Davey's comments on my 'Malcolm in brief' post. Link below]

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
Previous in series:

Comments on Weaver

Published
by
NL
on 29 June 2008
in Housing law
. 3 Comments

Belated, I know, but this is the first chance I have had to really look at the judgment in Weaver (R) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).

Ground 8 and Legitimate Expectation

First the substantive ground of challenge - that the use of Ground 8 mandatory possession claims by L&Q Housing Trust amounted to breach of the claimant’s legitimate expectation and/or convention rights.

This was based upon LQHT’s terms and conditions, which said that they would comply with the Housing Corporations regulations and guidance. Housing Corp guidance says that ‘before using Ground 8, associations should first pursue all other reasonable alternatives to recover the debt’. The Claimant argued that reasonable alternatives included agreement on paying arrears, money judgment, or discretionary possession claim on grounds 11 or 12. Seeking to avoid Postponed Possession Orders was, in effect, saying that the judicial discretion would not be properly exercised. LQHT’s practice, it was claimed, was solely to use Ground 8.

L&Q denied that they had a policy to only use Ground 8. That use of Ground 8 resulted in a high level of payment of arrears prior to hearing and was thus an effective tool. L&Q denied that the contractual term involved could give rise to legitimate expectation - it was a statement of intent or target duty. It was not specific enough to give rise to an expectation - the specific guidance was not prescriptive and the language vague. In any case, there was no evidence of reliance.

L&Q said they had pursued all reasonable alternatives in this case, and use of grounds 11 or 12 prior to the use of ground 8 could not be considered to be a required reasonable alternative.

On the facts of this case, where there was a history of substantial and repeated defaults on agreements, the Court found that L&Q was entitled not to consider using ground 11 or 12.

Moreover, the Court found that the wording of the guidance was too broad to allow solely the claimant’s interpretation and, as the passage in the terms and conditions was not contended to be contractually binding, it could not be treated as having the qualities that would justify enforcing it as a legitimate expectation, particularly as there was no evidence that the Claimant was even aware of the term.

The claim failed.

Comment

I think L&Q were, to some extent fortunate in the challenge they faced. Legitimate expectation was always going to be difficult to establish on the back of Housing Corp guidance. I was rather surprised to see it as the sole ground of challenge. I suspect that L&Q also managed to obfuscate their actual practice somewhat in evidence. Certainly what was put forward in evidence differs from what tenant-side advisors encounter. But there we are.

There may be enough in the specifics of this case to distinguish it in future, as LQHT’s behaviour in regard to this specific tenant clealry shaped the Court’s attitude to the overall challenge - there had been repeated attempts to recover arrears and come to agreements, as well as repeated NSPs, sufficient to bolster LQHT’s claim that this was a weapon of last resort.

There may also be further evidence on L&Q’s use of ground 8 that may support challenges on other bases. I don’t think that this one ends the JR and ground 8 possibilities.

Subject to Judicial Review

More significant in the broader scheme of things, of course, is that L&Q were found to be a Public Authority amenable to judicial review in its housing function.

L&Q’s argument was that they were not a public authority. While certain functions were certainly public, such as its statutory function in relation to anti-social behaviour orders, or specific statutory delegations by local housing authorities, the main function of managing and allocating its own housing stock was not public.

Public funding grants were received but this was not determinative of public function. Provision of housing is not a public function like provision of education or social care. Moreover, the relationship between Claimant and LQHT was contractual, which was at the core of R v Servite Houses, ex p Goldsmith [2001] LGR 55, as approved in YL v Birmingham City Council [2007] 3 WLR 112. RSLs have private law status and being subject to detailed regulation does not point to them being public authorities, as found in YL v Birmingham.

LQHT argued that even if allocation was a public function, the termination of tenancy was not. it was a management decision governed by contract. Since the decision in Peabody Housing Association Ltd v Green (1978) 38 P&CR 644, only Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 had suggested that termination of a tenancy by an RSL could be a public function, and Poplar Housing turned very much on its specific facts.

The Claimant argued that Peabody was prior to the explainsion of Judicial Review and Servite was decided prior to the introduction of the HRA. The Claimant applied YL v Birmingham and argued that LQHT was carrying out a overnmental function, the management and allocation of stste-subsidised housing (cf Novoseletskiy v Ukraine (2006) 46 EHRR 53). LQHT received substantial capital grants from public funds. RSLs were established under the Housing Act 1996 in order to deliver affordable housing and funded by Government to that purpose. Management of housing, including the setting of rents, is subject to the Housing Corp guidance.

The Claimant also pointed out the LQHT irself allocates and manages public housing resources in the public interest, albeit not strictly by delegation of functions, but Strasbourg case law on delegation of powers (e.g. Wos v Poland) was relevant. LQHT was entrusted with public funds and required to use them in the public interest. Unlike Southern Cross in YL, it is non-profit-making and not acting out of private, commercial motivations.

Deciding to grant or terminate tenancies are therefore decisions concerning the allocation of public housing resources.

The Claimant also argued that providing housing to priority applicants under the LA allocation scheme was pursuant to s.8 Housing Act 1996 and a duty under s.170 HA 1996. The Court found this misconceived, a duty to co-operate under s.170 is not a statutory duty to grant a tenancy.

Likewise, the Court ignored arguments on the government accepting that RSLs were ‘bodies governed by public law’ for the purposes of EU directives on procurement. The government’s view did not determine the position and EU law was not Convention or human rights law.

The Court found that LQHT was a public authority in its housing function, citing the following reasons:

  • LQHT is different to an ordinary commercial business by the nature of its activities and the contexts in which it operates.
  • LQHT is non-profit-making charity acting for the benefit of the community, so lacks the private and commercial features that feated in YL v Birmingham.
  • LQHT operates in the social rented sector which is not merely subject to detailed regulation (pace Southern Cross in YL) but is permeated by state control and influence with a view to meeting the Government’s aims for affordable housing and in which RSLs work beside local authorities and can be said in a real sense to take their place,
  • Control and influence is exerted through the Housing Corporation. While stautory guidance is non-binding, there is clear indirect pressure on RSLs to comply. The extent of control and influence being exampled by the approach towards implementation of policy on rent setting and the general statements in the Code of Guidance.
  • Particularly important - the nature and extent of public subsidy of LQHT, in common with other RSLs. In particular, the receipt of capital grants, esepcially social housing grants under s.18 HA 1996. Very large sums are involved. That they are for particular developments, rather than block grants, makes no odds. The funds are directed towards increasing social housing stock and are one means by which the state accomplishes this. While private funding is also important and RSLs aren’t the only receipient of funds, LQHTs business as a whole is heavily subsidised by the state due to the role played in implementing policy. A clear case of “the injection of capital or subsidy into an organisation in return for undertaking a non-commercial role or activity of general public interest (YL v Birmingham at 105).”
  • Also relevant is that a ’significant’ proportion - 10% - of LHQT’s housing stock was ex-local authority following voluntary transfer. While clearly not the same as Poplar Housing, which was formed for the specific purpose of stock transfer, this still reflected the fact that RSLs are performing functions of the same type as local authorities.
  • The duty of co-operation with Local Authorities under s.170 HA 1996 means that RSLs don’t have a purely commercial relation with local authorities, but operate under a statutory framework. Over half LQHT’s new lettings were nominations from LAs.
  • That serving a notice to quit was not a statutory power but a private law right did not prevent an RSL being a public authority. If allocation is a public function, it would be wrong to separate out ‘management’ including termination as private. Allocation and management are part of a single function.

For these reasons LQHT is a public authority in the meaning of s.6(3)(b) Human Rights Act 1998.

If it is a public authority for the purposes of the HRA, then it should be equally amenable to judicial review on conventional public law grounds.

Comment

I don’t think that this list should be taken as a set of necessary conditions for public authority status. Clearly some elements were more persuasive to the Court than others. For instance - the ex-local authority housing stock point. This is clearly a different point to that made in Poplar Housing, as here it is, in effect, simply further support for the idea that RSLs are performing the same type of housing function as local authorities. So, I can’t see how much, or indeed whether, ex-local authority housing stock is in possession of an RSL being a crucial determinant for their status as public authority. The main point is surely the level of public funding/subsidy and the level of state guidance/direction involved.

It would be difficult, I suspect, for any RSL to argue that its position is so significantly different to that of LQHT as to not be a public authority. But no doubt some will try.

While the headline is susceptibility to Judicial Review, it is also worth noting that, at almost the same moment that an amendment to the Housing and Regeneration bill to make RSLs subject to the HRA failed, this judgment states clearly that, in their housing functions, RSLs are indeed subject to the HRA.

A few months ago, this might not have been a big deal, but post McCann, it may turn out to be significant. Proportionality in the mandatory possession process anyone?

I know that a number of RSLs have been quietly settling prospective JR claims, precisely to avoid a full hearing on their status as public authorities. I suspect L&Q are not very popular at the moment with their fellow RSLs. There will no doubt be an appeal of that finding, which also opens the prospect of a cross appeal by the Claimant. Interesting times.

Hey, you asked 2

Published
by
NL
on 13 April 2008
in Housing law and Legal Aid
. 2 Comments

More brief but hopefully helpful replies to the civil litigation and housing questions that brought searchers to Nearly Legal. As ever, nothing of what follows should be taken as legal advice and no action should be taken without obtaining full legal advice.

what does mandatory possession mean

It means that if the ground is successfully made out, the court has no option but to grant an outright possession order, no matter what the circumstances.

possible defences for a tenant of rent arrears the mandatory ground housing law

Presumably ground 8. There aren’t many defences. The list is:

  • technical defences (Notice not served or technically inadequate, claim doesn’t contain required details etc.), no guarantee of success at all with this one;
  • defences that affect the level of rent arrears, e.g. there may be a dispute as to the correct level of arrears;
  • most useful is a counterclaim for disrepair, as it will affect the level of arrears outstanding by the end of the hearing of the claim.
  • Rarely, and depending on the conduct of the landlord, the claim may be defended as oppressive, but this would require clear evidence that the landlord had, for example, significantly misled the tenant on the claim and its consequences.
  • If the reason for the rent arrears is related to a disability there may be a ‘defence’ under the Disability Discrimination Act, but this is very complex and the possibility of the defence may change at any moment over the next couple of months. This one seriously needs qualified advice and representation.

All these defences are potentially complex and getting advice and representation is a very good idea.

disrepair and accelerated route for possession

Then there is a counterclaim for disrepair. It won’t stop the landlord getting possession, although it will likely slow the process up more than somewhat, but could lead to an award of damages.

renting can we break a shorthold contract

Without owing the rent on the remainder of the tenancy (or at least until the property is re-let) you mean? The answer is no, not if you just want to go. There may be a break clause in the tenancy agreement (e.g. after 6 months on a 12 month contract) or there may not be. It may be possible to leave if there is something catastrophically wrong, but that needs detailed advice.

assured tenancy assignment

It may be possible, if it is not expressly ruled out in the tenancy agreement. However, even then, the landlord has to give permission. Unless the tenancy agreement expressly says so, there is no presumption that the permission will not be unreasonably withheld, meaning the landlord can refuse permission no matter how reasonable the request is.

can i stay in rented property once my notice requiring possesion has expired

Yes. Assuming you don’t fall under one of the exceptions, your landlord has to make a claim for possession, get a possession order from the court and then a warrant of possession. If your landlord tries to evict you without a court order and warrant, it is very likely to be an illegal eviction.

are there legal grounds for withholding rent with a secure tenancy?

With one very complicated exception to do with having to carry out repairs that are the landlord’s responsibility, no. I’ll say it again, you cannot and should not withhold rent. It puts you at risk of a claim for possession and will not resolve whatever the problem is. If the problem is something like undone repairs, you have another path in a claim for disrepair.

what rights do tolerated tresspassers have

The ability to apply to the court to stay or suspend an eviction and, if the arrears haven’t been paid off, the right to apply to the court to revive the tenancy. That is about it. No Right to Buy, no repairing duty on the landlord, no transfer, no succession or assignment rights. A tolerated trespasser can still bring a prosecution against the landlord under the Environmental Protection Act for nuisance, though.

tenants rights bed bugs wandsworth housing authority

Ouch. Unless it can be shown that the infestation came from an area that is under your landlord’s control (communal stairs, vents etc., but not gardens or other flats) you are pretty much on your own. If it did come from the communal area, it could be a nuisance prosecution, but this would need expert evidence.

legal aid for housing law

Yes, but get it while it lasts.

And lastly and very worryingly

trainee solicitor forging signature

The trainee has forged, or someone has forged the trainee’s signature?. Presuming the former, the trainee is in a whole heap of trouble and has quite possibly ended their career. If this is from a trainee thinking about forging a signature, it would be a cretinously stupid thing to do and just deeply, fundamentally wrong.

S v Floyd and a disability defence

Published
by
NL
on 27 March 2008
in Housing law
. 7 Comments

This post started as a response to a detailed comment by David Giles, Counsel for Floyd in S V Floyd, on my case report. But his comment and the report by Michael Paget mentioned in my last post - to the effect that Floyd contained a clear rejection of the very idea of a DDA ‘defence’ rather than compensation claim - have sent me back to have another look at S v Floyd. I recommend a look at David Giles’ comment, then reading this post (which is rather hurried and may well be edited over the next day or two)…

David, I agree that Malcolm was distinguishable from Floyd on the non-relation of disability to non-payment of rent point. That by itself would not mark a breach with Malcolm.

I think the distinction made between a statutory mandatory claim and the ‘contractual’ (actually common law - thanks J) claim in Malcolm doesn’t stand up, because if the suggestions in the Floyd judgment were carried through, it would make no difference - both would be lawful possession claims with no DDA ‘defence’.

I noted the scepticism to the idea of a DDA ‘defence’ at 48. and meant to comment on it in my original post. But as I did say in that post, I think that the Court has got rather confused about the very idea of a ‘defence’.

The judgment in Floyd does not put forward an argument that gets around s.22(3)(c) DDA 1995. If the eviction is unlawful by reason of being unjustified discrimination, what does the Court suggest? The implication of 48. would be a claim for compensation. So, the County Court is to aid an unlawful act by making the possession order, but it is OK because the ex-tenant then has a claim for compensation? This makes no sense.

The objection appears to be that an otherwise lawful possession claim cannot become unlawful by operation of the DDA. But that is the point of the DDA in general - otherwise lawful acts are unlawful if they constitute disability discrimination.

It is hard to escape the logic of Malcolm, once it is acknowledged that an otherwise lawful possession claim can constitute ‘less favourable treatment for a reason related to disability’ in comparison to ‘others to whom the reason would not apply’, to paraphrase s.24(1)(a).

The Floyd judgment does approach this in 57 and 58, as you say, by reference to Taylor v OCS Group Ltd [2006] EWCA Civ 702. Taylor v OCS at 72 says:

“In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer’s mind) which is related to the employee’s disability.”

This is a major difference to the interpretation of ‘for a reason’ set out by the Court of Appeal in Novacold. The judgment in OCS distinguishes Novacold by saying that the treatment in Novacold was clearly for a reason related to disability, so the judgment offers no aid on ‘reason related to…’. But this dismissal doesn’t actually stand up. If it did then the whole logic of the comparator set out in Novacold would make no sense at all, as it is based on an analyis of what the term ‘reason’ actually means, and it is not the meaning that is set out in OCS.

The stakes become clear at this point. It is not, in the end, about whether the DDA applies to mandatory possession claims. As far as I can see Floyd gives no reason at all why it would not - while not actually having to decide the issue in this case. The argument - or significant difference of position - is about the interpretation of ‘for a reason related to his disability’ tout court, pitting OCS against the line of Novacold judgments, including Malcolm and Romano, and affecting the entire application of the DDA.

But even if the OCS approach was right, and I’m sure the House of Lords will hear it in Malcolm shortly, that would not stop the DDA having potential application in mandatory possession claims. For example, what of a s.21 possession that could be shown to have been undertaken because the landlord did not want a disabled person to remain in the property? Is the only recourse of the ex-tenant to be to a claim for compensation, while the County Court aids an unlawful act?

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
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