Possession | Nearly Legal

Tag Archive for 'possession'

Equality bill to tackle Malcolm judgment

Published

on 1 December 2008

. 2 Comments

From Usefully Employed (hat-tip) comes the news that the consultation on the Equality Bill proposes the introduction of indirect discrimination as a category, which would help with the horlicks that the Lords made of the 1995 Act in Malcolm v Lewisham:

[the Bill shall] adopt the concept of indirect discrimination for the purposes of the disability discrimination provisions in the Equality Bill, rather than carry forward to the Equality Bill the existing provisions in the Disability Discrimination Act 1995 that apply to disability-related discrimination. Once a prima facie case of indirect discrimination has been made, it will be possible for the person who imposed the provision, criterion or practice to show that it was objectively justified to defeat the claim; and

introduce a requirement that those people and organisations that are under a duty to make reasonable adjustments for disabled people must make any reasonable adjustment that the Equality Bill will require them to make before they can seek to justify indirect discrimination.

Consultation here. Let us hope that this provision will extend to eviction as the 1995 Act did, but without the little difficulties.

Enforcing Postponed Possession Orders

Published

on 14 November 2008

in Housing law

. 1 Comment

LB Wandsworth v Whibley [2008] EWCA Civ 1259.

If a postponed possession order is made and the landlord takes the view that the conditions of postponement have been broken, the application for a date for possession should be conducted on a summary basis and only on the basis of evidence submitted by the landlord… or so argued LB Wandsworth in this case. Unsurprisingly, they lost.

Mr Whibley is the secure tenant of LB Wandsworth. He was a man who cultivated and used cannabis and who had been convicted of the same. LB Wandsworth sought possesson of his property on the basis of his drug convictions and some minor rent arrears. In due course, after trial, a postponed possession order was made. For some reason (likely an administrative error on the part of the court) the PPO only referred to payment of rent and not to any conditions to do with the nuisance.

A few months after the possession order was made, Wandsworth received further complaints about the behaviour of Mr Whibley. The solicitor for Wandsworth wrote to him giving details of the complaints and asking for a response within 7 days, in particular, detailing whether or not he disputed the right of the council to seek to fix a date for possession.

Mr Whibley did not respond himself but, very sensibly, engaged Flack and Co, who informed Wandsworth that the allegations were disputed (in the interests of full disclosure, William Flack is a regular commentator on this blog and is a friend of NL).

Wandsworth then applied to the county court to fix a date for possession. They included a witness statement in support of their application but did not provide the court with a copy of the letter from Flack and Co. (Although nothing ultimately turned on that point, that strikes me as particularly sharp practice). They later added rent arrears as a second reason for seeking to fix a date.

Mr Whibley cross-applied, seeking to adjourn the hearing with directions or, alternatively, for any warrant to be suspended. It was made clear that he denied responsibility for any nuisance and that, on his case, the nuisance was caused by unwanted and uninvited ‘guests’ who had taken over his flat.

The DJ who heard the applications did not give possession as Wandsworth sought, but instead varied the original possession order so as to record the condition of postponement as regards nuisance and then gave directions. He did, however, give Wandsworth permission to appeal. Wandsworth accepted that invitation and appealed to the Circuit Judge. Their stated intention (both before the CJ and the CA) was to:

Secure a ruling that, save in quite exceptional cases… county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order [10]

The Court of Appeal had no difficulty in disposing of this argument. Whilst it is possible to deal with rent arrears cases in this way, that is only because rent arrears are (usually) a matter of record. This was not (usually) the case in nuisance cases, where the conduct was often disputed. That being so:

It is not permissible for a tenant who has a possible answer to lose his or her home unheard [12]

The nature of any such hearing (the necessary directions etc) would vary from case to case, and courts would be alive to ensuring that nuisance tenants did not abuse this process, but the process still had to be fair to both sides. A summary procedure could not possibly be fair if there was any room for dispute about the factual allegations made by the landlord.

Wandsworth had relied on Southwark v St Brice [2001] EWCA Civ 1138 for the proposition that a landlord should not have to prove matters twice. However, as the Court of Appeal pointed out, that was not what would happen in a PPO. The landlord was alleging fresh breaches of the terms of the postponement. It should have to prove them in the usual way.

Of course, if a tenant did not dispute the allegations (whether to do with rent, nuisance or anything else) then a court could properly consider the matters on the papers and proceed in a summary fashion, but that was not the case here. Appeal dismissed.

Sometimes, you just feel like weeping. Social landlords do, in my view, have a very important role to play in progressing the law and in advancing the best arguments that they can. They can and should push the law where they see fit. But this argument was nothing of that sort. This just seems petty and vindictive.

Pour encourager les autres

Published

on 14 November 2008

in Housing law

. 3 Comments

Webb v Wandsworth LBC (Court of Appeal, November 12, 2008, extempore judgment and only noted in Arden Chambers Eflash 328)

Ms Webb was the secure tenant of LB Wandsworth. Between 2005 and 2006 her son was involved in a number of serious criminal and anti-social acts in the local area. In response, Wandsworth issued possession proceedings relying on Grounds 1 and 2, Sch. 2 Housing Act 1985. Shortly thereafter, an ASBO was made against the son. The son subsequently left the family home, although he would regularly return to visit his mother.

The possession trial came on in October 2007. There had been no ASB for a year and the son had been living elsewhere for 8 months. The Judge made a postponed possession order, apparently taking into account the fact that the son had been charged (but acquitted) of three breaches of the ASBO.

Ms Webb appealed to the Court of Appeal and contended that the three acquittals were irrelevant considerations. The Court unanimously upheld her appeal and quashed the possession proceedings. It was wrong in principle to take those matters into account.

Sedley LJ has, apparently, gone further and in his judgment, has stated that it is not permissible to use a possession order as a means of trying to force a tenant to exercise control over a third party.

It is, as you might imagine, the comments of Sedley LJ that appear to be the most interesting. I defend a fair few ASB cases and one of the things which most frustrates me is seeing my clients being demonised for the actions of their children/(drunken) partners. At a personal level, I hope the transcript of this judgment is as promising as the Eflash suggests it will be.

Harassment by possession claim

Published

on 13 November 2008

in Housing law

. 0 Comments

In what appears to be a good week for somewhat bizarre cases, may I present Carlos Allen v London Borough of Southwark (2008) CA (Civ Div) 12/11/08 (unreported save as a case note on Lawtel). This was an appeal by Mr Allen to the Court of Appeal of the striking out of his claim for harassment against LB Southwark.

Mr Allen was a Southwark tenant. Since 1996, Southwark had issued five possession proceedings against him for rent arrears. Southwark had insisted that Mr Allen pay his rent at a Post Office rather than his local housing office, which apparently couldn’t deal with cash. Mr Allen defended the first claim on the basis that his tenancy agreement specified payment at a housing office and it had never effectively been varied to permit or authorise payment otherwise. The first possession claim was struck out as Southwark could not show the tenancy agreement had been varied. And so were the next four possession claims. Each time, Southwark failed to show the tenancy agreement had been varied to permit or include payment at a Post Office.

Mr Allen brought a claim for harassment contrary to the Protection from Harassment Act 1997 in respect of the last three possession claims. At County Court, his claim was struck out as having no reasonable prospect of success.

Mr Allen appealed, in person. The issue was whether separate proceedings founded on the same alleged cause of action could constitute harassment under the Act. Southwark argued that its behaviour might have been careless, negligent, perhaps even vexatious, but it wasn’t harassment.

The Court of Appeal found:

The Act did not define the meaning of “harassment”, but subsequent case law found it to comprise conduct that was oppressive, unreasonable or unacceptable, Thomas v News Group Newspapers Ltd (2001) EWCA Civ 1233, (2002) EMLR 4 and Majrowski v Guy’s and St Thomas’s NHS Trust (2006) UKHL 34, (2007) 1 AC 224 applied.

The local authority only asserted that it was careless or negligent, giving nothing further, but a reasonable person might consider that the authority’s conduct did indeed amount to harassment. The judge was wrong to find that Mr Allen’s claim had no reasonable prospect of success. The case was to continue to trial in the County Court.

I wish a full judgment was available. I’d love to read the details. Of course, this is going to be somewhat limited application, but I think one has to take one’s hat off to Mr Allen.

A cautionary tale

Published

on 22 October 2008

in Housing law

. 0 Comments

Or the story of the warrant request that wasn’t there.

Hallam-Peel & Co v London Borough of Southwark [2008] EWCA Civ 1120 is a second appeal from a wasted costs order against Hallam-Peel, a legal aid housing firm, made during stay of warrant proceedings at Lambeth County Court.

Hallam-Peel were acting for the applicant. Before and at the first hearing, an question was raised about whether the warrant had been applied for within 6 years of the date of the possession order (hence not needing permission). Counsel for the applicant was apparently told or shown (not clear) that the request for the warrant was made within time. The hearing was adjourned due to lack of time. Hallam-Peel amended the application, with no issues about the validity of the request for the warrant raised. They also requested disclosure of a number of documents from Southwark, including any Southwark intended to rely on. Southwark provided disclosure, which didn’t include the request for the warrant, which had not been specifically requested.

At the adjourned hearing Counsel for the applicant (the same counsel) apparently had a rush of blood to the head and, for unexplained reasons, demanded to see the request for issue of the warrant (which he may or may not have seen at the first hearing). On seeing it, Counsel decided that the fact that it showed a wrong (lesser) figure for the outstanding arrears meant that he wished to include an additional point in the application - that the request was defective for this reason. He therefore requested a further adjournment to allow the application to be amended again. Counsel for Southwark raised the point that at any adjourned hearing, Hallam Peel should attend to show cause why they should not pay the costs of the adjourned hearing. This appears to have been purely on the basis that the applicant was legally aided and so protected from costs in person. DJ Eastman took this point and, apparently blind to any conflict of interest raised, told Counsel for the applicant to seek instruction on whether to pursue the validity of the request for the warrant and with it a show cause to Hallam Peel as to why they should not pay the wasted costs of the hearing if it were to be adjourned. Credit to Hallam-Peel, the instructions were to go ahead. (Although frankly, I don’t think Counsel had hit on a particularly good point - a wrong figure lower than the actual one is not going to attract the wrath of a DJ, let us be honest).

The matter was settled in the meantime, leaving the hearing of the show cause on the wasted costs. At the hearing in front of DJ Jacey, Southwark argued that Hallam-Peel, by failing to request the disclosure of the request for a warrant at the same time as the other disclosure, had acted unreasonably by then demanding a further adjournment to amend the application on the basis of that request. Hallam-Peel argued, perhaps not wonderfully, that evidence reagrding th warrant has been raised at the first hearing abd Southwark had been told to disclose relevant documents. They admitted they had not specifically requested the document in the interim.

DJ Jacey found they had acted unreasonably and made the wasted costs order, on the basis that the issue of the details on the request should reasonably have been taken up at an earlier stage. it was a breach of duty to the Court not to ensure that “all matters are properly raised before the court and in good time so that everybody can deal with the matter and the court itself has sufficient time to deal with them.”

On appeal HHJ Welchman found DJ Jacey’s decision to be reasonable with no error of law.

If by this point, your jaw has hit the floor, hurray for the Court of Appeal. Hallam-Peel were granted permission for a second appeal and made a somewhat different argument via Counsel (not the same counsel!), resisted by Southwark on the basis that it had not been raised before. This time H-P argued that

The only charge against Hallam-Peel was that they could and should have asked for the production of the request for the warrant earlier than 14 July 2005 but had failed to do so. The answer is that they did not ask for it before then because they had no reason to do so. It is not suggested that there was anything in the material they had seen to suggest that the request was irregular. They therefore had no reason to assume or even suspect that it was or might have been [...] There was therefore strictly no basis upon which Hallam-Peel could properly have sought its production; or at least it could not be said that it was unreasonable for them not to have done so. In unexplained circumstances – and the evidence suggests that not even Hallam-Peel know them – counsel for Mr Dubois asked at the hearing of 14 July 2005 for the production of either the request or Southwark’s file. Having seen the request, he then raised the new point based on the irregularity in it, which resulted in the adjournment. No-one has suggested that counsel acted unreasonably by doing what he did. The sole villains of the piece are Hallam-Peel, who have been held vicariously liable for its costs consequences. They have been punished for not anticipating counsel’s thought process. Since, for reasons submitted, there was strictly no basis on which they might reasonably have earlier pressed for the production of the request, there was no basis for a charge of unreasonableness sufficient to sustain a wasted costs order.

Thankfully, the Court of Appeal agreed. While noting this was a new argument, not raised in the courts below (where H-P had actually dug themselves into a bit of a hole), they could not fail to find that DJ Jacey and HHJ Welchman were in error. Neither judge below had actually asked why it was said that H-P had acted unreasonably. They simply found that, in view of the adjournment and amended application, it was unreasonable not to have requested the document earlier. However, if the why was examined, there was no unreasonable behaviour (and thus no breach of duty to the court) because before Counsel had a lightning flash at court, there was no issue on the validity of the warrant and no reason to suppose there was one. So:

The point about the present case is that it does not appear to have occurred to Hallam-Peel that a sight of the request might open up a new avenue of argument. Even if that is to be regarded as a shortcoming on their part, and I do not decide that it was, I refuse to accept that such a shortcoming can or should fairly be castigated as “unreasonable” conduct on their part, involving a breach of duty to the court, such as to justify a wasted costs order against them.

There are a few observations to be made here (not least that there is one counsel that I doubt receives many instructions from H-P anymore, having dropped them in this mess in order to pursue what looks like a pretty iffy point on the spur of the moment). But perhaps the main one is that if this had been upheld, litigation in these matters would have become ridiculous. Defendant solicitors would demand disclosure of absolutely everything from the local authority, just to avoid the prospect of a wasted costs order if something turned up in an unrequested document later on, with an inevitable adjournment request. Local Authorities, already pretty bad at disclosure in a timely manner, would stagger under the demands and end up adjourning even more hearings for time to disclose.

Southwark, or counsel for Southwark, rather short-sightedly chose to pursue a wasted costs order and this was clearly, as the Court of Appeal found, simply because the applicant was legally aided and this was the only way to retrieve costs. But a precedent for a wasted costs order simply because counsel on the spur of the moment spotted something in a previously unrequested document, (let alone a superhuman standard of perfection in the conduct of the solicitors) would undoubtedly have bitten the local authority side badly all too often as well.

Hey, you asked…

Published

on 28 September 2008

in Housing law

. 8 Comments

Another in Nearly Legal’s sporadic attempts at being helpful to passing internet searchers. All the questions are genuine searches from the logs, including the rather puzzling ‘crinoline flint’, which perhaps gives more insight into the searcher than one might want. As ever, none of what follows constitutes legal advice and you should always consult a specialist solicitor before taking any steps.

So, by theme:
1. Disrepair
disrepair protocol costs
…are part of a claim. May I direct you to our post on Birmingham v Lee on recoverability of protocol costs where works are done pre-issue.

living in unihabitable property and the consequences for landlords
I would imagine a pretty substantial disrepair claim against them, depending on why the property is supposedly uninhabitable.

appeal housing flood
Appeal? Why appeal? Was there a claim? Floods are tricky things, though. Liability depends on the source and the cause. Landlords will usually be liable for the water supply and fittings in the property, but not where another tenant has caused the flood. The other tenant is then liable. But it is worth considering that even if the flood was caused by an upstairs tenant, if it has done damage to the structure of your property, the landlord is liable for that disrepair.

mice infestation qualifies as disrepair
By and large, no. An infestation of mice may count as nuisance, if they can be shown to be accessing the property from an area under the landlord’s control (common areas, service ducts etc.), which effectively rules out houses, or ground floor flats. An infestation might be part of a disrepair claim as a consequence of disrepair - if entry is gained through disrepair. Otherwise, nuisance is the best bet.

can i withhold rent disrepair
Only in very limited circumstances: where the landlord has been notified of the works required for which the landlord is responsible; failed to do them in a reasonable time; has been notified by the tenant that unless the works are done by a specified date, the tenant will do them, the landlord has been provided with an estimate of the costs and the tenant has notified the landlord that the costs will be deducted from the rent. The tenant can then deduct those costs and only those costs from the rent. Was that what you had in mind? I thought not. Otherwise, you cannot withhold rent and may face possession proceedings if you do. Compensation for disrepair is virtually always less than the rent in any event.

bed bugs tenancy agreement london
One of many, many searches on bed bugs. The trouble is that it is very unlikely that the landlord will be liable, or responsible for stopping the infestation. It is hard to claim nuisance, as it is very difficult to establish that the source of the infestation is an area under the landlord’s control. It will be a very rare tenancy agreement that would make the landlord responsible for stopping an infestation. For these reasons, it is also not a justification for breaking a tenancy agreement.

2. Possession
can the council in ealing evict me from my secured tenancy 3 bedroom house if my last son moves out
Probably not. Possession claims for under occupation can only be brought in very limited circumstances, where the tenant is a successor (but not to their spouse or civil partner) and notice was served between 6 and 12 months after the succession. Suitable alternative accommodation has to be available and it has to be reasonable for the Court to make the order. Note that this applies to secure tenancies only. Those with assured tenancies (eg, most housing association tenancies) can face possession proceedings if they refuse suitable alternative accommodation and suitable accommodation is available at the possession hearing.

staying a warrant mandatory ground
No. Can’t do it.

what happens when a tolerated trespasser clears arrears and court cost
At the moment, nothing, except , by and large, they lose the ability to apply to the court to revive the tenancy. Equally, the landlord can’t enforce the possession order. There is no new tenancy unless the landlord decides to give one. These are what has become known as entrenched trespassers. This should change when some sections of the Housing & Regeneration Act 2008 come into force. Trespassers should get a ‘replacement’ tenancy automatically. Much more on this when it happens, which should be in April 2009. The whole thing remains messy - get specialist advice and bring your possession order with you (see the comments below).

3. Homelessness issues
caselaw ending interim accommodation with reasonable notice
You’ll be wanting Conville v London Borough of Richmond-Upon-Thames [2006] EWCA Civ 718.

legal rights when 1 party wants out of a mortgage leaving 1 person homeless
A joint mortgage? The other person can’t just get out of the mortgage. They can stop paying, which, although it would leave a claim against them, obviously makes the situation practically difficult. In a joint mortgage you are each liable for any and all of the mortgage payments. Can you end up losing the property? Yes - so you should get advice on your position as soon as possible, as it can be complex.

powerpoint on homelessness law uk
A bit lazy, no?

4. Funding
small claims defence southwark public funding
Very doubtful. Public funding is not available for small claims, with very limited exceptions.

how much legal aid is released to solicitors dealing with housing issues
Err. Do you mean for a case - then it depends. Or do you mean what part of the civil legal aid budget this year goes to housing matters? That I don’t know, off hand. In any case, legal aid is not ‘released’ to solicitors - they don’t get the money ahead of doing the work (in fact usually not for quite some time afterwards), and the LSC sets strict limits on the amount of work that can be done. The solicitor has to apply for and justify each increase in the limit. Then their bill is assessed at the end.

public funding cost of works disrepair
In order to be a potential fast track matter and so get public funding, the rule is that where there are works required either the cost of works or the likely damages must be over £1000. So if the damages are over £1000, the only requirement is that there are works outstanding, the works do not have to be over £1000 in cost.

Shared Ownership - Midland Heart with benefit of transcript

Published

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

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.

And the 23rd Claim…

Published

on 1 September 2008

in Housing law

. 4 Comments

As a tale of vexatious litigants, HM Attorney General v Ford & Anor [2008] EWHC 2066 (Admin) has it all. Mysterious changes of identity, admitted perjury, repeated applications for judicial review of refusals to give permission to appeal, and appeals of refusals, all resulting from a claim for leasehold enfranchisement by three leasehold tenants.

Two years after the leasehold enfranchisement vesting order against an absentee landlord, David Sayers, in 2001, a Mr (sometimes Captain) Daniel Ford and Mrs Liubov Ford appeared from abroad and applied to have the order set aside, claiming to have obtained the title by adverse possession some years before and had built a garage (the ‘coach house’) on the property. The application was dismissed, permission to appeal on paper refused, then refused again in oral application. In this hearing Mr Ford stated that his previous statement was knowingly false and that he was, in fact, David Sayers.

After a series of failed appeals on the costs order resulting from this proceeding, the Fords then applied to have the LVT proceedings on valuing the property discontinued on the basis that he was now shown to be the legal owner. In this Mr Ford claimed he hadn’t said he was David Sayers before because he didn’t think he could prove that he was using that name. This application was refused, after a three day hearing.

A possession claim was brought against the Fords for part of the wider property that they were occupying, but not the Coach House parcel, which remained registered to David Sayers. The Ford’s application to strike out was refused, they sought to appeal, with permission refused by the High Court and Court of Appeal. The interim injunction orders against them also faced failed appeal applications to High Court and Court of Appeal. At a eight day possession hearing, where the Fords claimed over 12 years adverse possession, a possession order was made, with Mr Ford’s evidence described as untruthful in many parts. The Fords were refused permission to appeal to the Court of Appeal.

Committal proceedings for non-compliance followed. 28 days in prison were followed by a further 42 days, after an unsuccessful appeal to the full Court of Appeal. The Fords had simply returned to the property and told the Court of Appeal they had no intention of relinquishing it.

There followed a small success for the Fords in judicial review of the LVT valuation of the property, which included the specific Coach House lane, which was actually under a separate title number and still owned by ‘David Sayers’. The Fords then attempted to stay the LVT proceedings for a further flurry of applications, appeals and JR applications, including struck out attempts to reopen the intial case, JR applications against the County Court for dismissing yet another application to set aside the possession order and so forth, just about all of which were taken to application for permission to the Court of Appeal (all refused). The Fords’ other limited success was against the police for the conduct of the execution of the warrant of possession.

Not even bankruptcy, brought about by Lambeth, stopped the Fords. A flurry of attempts to overturn the order, with allegations of conspiracy between Lambeth, the tenants and the Attorney General, followed.

The Official Receiver discontinued all the outstanding proceedings. The Fords either sought Judicial Review of those decisions to discontinue or attempted to pursue proceedings independently. All the claims were dismissed or struck out, permissions to appeal refused.

Meanwhile the tenants waited, and still wait on for the seven year old vesting order to finally bear fruit.

The Fords resisted the Attorney General’s application to have them declared vexatious litigants, arguing that where they had lost their cases this was:

due to judicial bias or disfavour against litigants in person, who are seen as a nuisance to the court system, and who are not given proper attention by the courts, and therefore do not receive proper justice.

The Court of Appeal saluted Mrs Ford, the principal advocate for the Fords, for her ‘courage and persistence’, noted their two limited successes and declared them vexatious litigants under section 42 of the Supreme Court Act 1981, requiring permission of a High Court judge to bring any further proceedings.

Notes on Doherty v Birmingham CC

Published

on 30 July 2008

in Housing law

. 10 Comments

So, Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent) [2008] UK HL 57

Well, well, and once more for effect, well. This is a very interesting result indeed, although I use the word result in a non-definite kind of way.

The headline is simple enough, the case was remitted to the High Court for determination of the domestic judicial review issues raised as defence to possession. Court of Appeal overturned. The majority would also have made a declaration of incompatibility in regard to the Mobile Homes Act 1998, if the incompatibility had not already been removed by the passing of the Housing and Regeneration Act. Their Lordships declined to vary or amend Kay v Lambeth in the light of this appeal or the last minute submissions on McCann v UK.

Behind the headlines though, there is a hell of a lot of devil in the details. In particular, I think it is safe to say that there has been some movement on Kay v Lambeth, enough to make the situation not quite so bleak as it then appeared.

I’ll start with the majority and the judgments of Lords Hope and Walker, agreed by Lord Rodger

For those with attention spans of less than a year, the majority in Kay v Lambeth held to a formulation on Human Rights challenges to possession claims where the landlord’s right to recover possession is unqualified that was set out by Lord Hope in para 110 of Kay. To wit, the only situations in which it would be open to the Court to refrain from proceeding to summary judgment are:

(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.

These will be called gateway (a) and gateway (b) below. In Kay the majority view was clearly that gateway (b) would mean a challenge on the basis of domestic public law grounds, not broader Convention grounds. The minority in Kay considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.

In his judgment, Lords Hope held that the facts of Doherty - a gipsy family faced with summary possession after a Notice to Quit from a site that they had occupied for many years - were distinct from those of Connors v UK, Kay and indeed McCann, although most similar to Connors.

Here too was a unqualified right to possession by the local authority, where the decision to exercise that right was unchallengable under s.6(1) HRA 1998 as it was acting to give effect to the provisions of statute - s.6(2)(b). (Both Jan Luba QC for Doherty and Philip Sales QC for the Secretary of State challenged this point and it was not uniformly accepted - see below).

This was not a common law possession issue, but, because of the specific exception of local authority caravan sites from the Caravan Sites Act 1968 and the Mobile Homes Act 1998, an exercise of a specific right to common law possession given by statutary enactment - such that common law rights are effectively permitted by statute. (Again, not uniformly accepted).

Given this, and the Dohertys’ position as gypsies, the Connors issue of gateway (a) incompatibility applies - unjustifiably discriminatory statute. Because s.6(2)(b) applied, there was no possibility for the Courts to interpret the statute in accordance with the HRA (s.3(1)), leaving a declaration of incompatibility as the gateway (a) resort. As a result of the passing of the Housing and Regeneration Act, which corrects the issue, a declaration is not neccessary.

But gateway (b) could also apply. In Kay, the defence on public law grounds was limited to whether the decision to claim possession was ‘one that no reasonable person would consider justifiable’. Lord Hope points to his own comment at para 114 of Kay that the grounds of challenge to a decision to bring a claim were whether it was ‘arbitrary, unreasonable or disproportionate’. So gateway (a) and (b) work together to address the incompatibility of lack of procedural safeguard. If the statutes can be effected by the court in accordance with article 8 under gateway (a), fine. if not then it is open to the defendant to argue that that court must be satisfied that, on the basis of the grounds the claimant gives for its decision to seek possession, the decision is not Wednesbury unreasonable [para 53] (What grounds given for the decision? - this is summary possession!)

On the facts of this case, gateway (b) might have give an effective defence to the appellant. Gateway (b) provides an effective procedural protection. But, at para 55. Lord Hope says:

I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.

Lord Hope’s address to McCann, at paras 15-21, is solely in terms of the issue of incompatibility and ‘objective standards’ of an arguable case. There is no address to the issue of whether domestic judicial review grounds and a consideration or proportionality are commensurate, despite McCann’s express view on this. But Lord Hope’s suggestion that judicial review grounds could address disproportionate decisions [para 52] and the hints at para 55 may indicate a broader set of grounds for public law defence to unqualified possession claims than just Wednesbury unreasonableness.

Lord Walker’s judgment broadly ends up at the same point. However, Lord Walker spends some time to point out that the statute/common law distinction was not at issue in Kay, in order to support the view that s.6(2)(b) applies in the present case - implementation of statute not common law is at issue. Accordingly, Lord Walker agrees on a declaration of incompatibility via gateway (a) and also that it is not now required.

On gateway (b) Lord Walker, who was in the minority in Kay, is not happy about the distinction between HRA grounds and ‘traditional public law grounds’ [paras 108 -110]. He remains unsure that s.6(2)(b) applies to what are common law possessions. In view of McCann, he is even more concerned about the separation of HRA and JR grounds [para 116]. In fact, the circumstances where a viable defence appears may not be as exceptional as he thought in Kay, in view of Local Authorities looking to avoid contested possession claims via ‘relinquishing notices’ as in McCann (Birmingham and others should rethink their policy).[para 121-122]. The Court’s consideration of any gateway (b) defence should be focussed on the Local Authorities’ decision making process.

Lord Rodger agrees with Lords Hope and Walker, with nothing further.

Lord Scott’s judgment suggests that traditional judicial review procedure should be amended to allow considerations of disputed fact [para 68] as a part of gateway (b), and also that the defendant’s personal circumstances might well be a factor to which the local authority should have regard in making the decision on a possession claim, and therefore open to an examination by the court of whether the decision was unreasonable and disproportionate.[para 70]

Lord Scott did not see the need for a declaration of incompatibility in the present case, Kay having removed any Art 8 incompatibility found in Connors [para 80]. There is also a spectacularly ill-humoured and, in my immensely humble opinion mistaken attack on McCann at paras 82 - 88.

Lord Mance agrees on remitting the case to the High Court for gateway (b) consideration, but does not agree on an (abortive) declaration of incompatibility. Although the possession claim was a statutory matter [ para 132], the availability of gateway (b) means that the statute is not incompatible with Art 8, although the statute may well have been incompatible per se. In any case, the challenge in Doherty was that if Art 8 was not available to him to rely on in one form or another, this was incompatible with convention rights. No incompatibility of specific statute was raised [para 154].

On gateway (b) Kay excluded convention grounds [para 136] but this case was not the same as Kay. In Kay, the challenge was to the local authority’s decision to enforce its undoubted right to possession. In Doherty, the challenge was to the validity of the decision to give a notice to quit, which is a pre-condition to any right to possession [para 157].

In Qazi, Connors, Kay and McCann situations, a Local Authority has discretion as to whether it undertakes the steps necessary to resume possession, or whether to bring proceedings. It arguably cannot be described as action ‘to give effect to’ or ‘enforce’ a statutory provision which may be considered incompatible with Convention rights. The Council is giving effect to its own evaluation of the position and in doing so is obliged to respect Convention values. Non-compliant decisions should therefore be challengeable under the Wandsworth LBC v Winder principle [para 158]

In the present case, the decision to bring possession proceedings could not be considered as ‘giving effect’ to statute, so s.6(2)(b) did not apply and would not hinder a challenge on Art 8 grounds to the validity of the notice to quit and thus a defence to the possession claim [para 159].

Kay is distinguishable on the basis that this case was a challenge to the validity of the notice to quit [para 160-161]. This case should be remitted to the High Court to consider an Art 8 challenge to the validity of the notice to quit - a challenge on Convention as well as conventional judicial review grounds. Thus any incompatibility with statute is removed [para 161]. Lord Mance regrets that it was not possible to vary Lord Hope’s ‘para 110′ (above) to enable Convention grounds for challenge.

And there we are. A majority which isn’t, as Lords Hope and Walker have significant differences in their views, with Lord Rodger agreeing with both. Judgments which suggest that the Kay formulation of judicial review grounds for defence have been extended, or not, or maybe should be taken with a bit more latitude than Kay apparently decided, but not so far as full Convention grounds, unless they should be considered.

I’ve no time for a properly considered, critical view, but at the very least, a defence on grounds of unreasonableness of the decision to bring proceedings on a summary possession claim has been acknowledged to be available, to supposedly address proportionality and that it is more likely to be raised and indeed justified than Kay apparently permitted.

A few quick points.

Their Lordships generally regretted that they hadn’t been constituted as a 7 strong panel, in the light of the late arrival of McCann. A 5 strong panel simply could not change the decision of the panel of 7 in Kay.

The gateway (b) defence only applies to summary possession proceedings brought by public bodies (now potentially including RSLs after Weaver).

The proportionality issue is seen as a matter of the decision brought by the landlord - so only applies to public landlords and their decisions - not to the decisions of the court.

Where statute provides specifically for a mandatory procedure, it is likely that a full challenge to compatibility is the only option - and extremely unlikely to be successful.

There is much else to digest, whether obiter or not part of the ratio decendi. I may well return to this shortly. For the moment, I going to start work on the public law defence for a summary possession case that has just dropped into my lap, and I’m grateful that Doherty at least gave some wriggle room on that.

Any CLP people care to contribute views?

Incoming

Published

on 29 July 2008

in Housing law

. 3 Comments

The House of Lords is due to hand down judgment in Doherty v Birmingham tomorrow (30/7). This will include their Lordships’ first take on McCann v UK.

I’m aiming to have some sort of case note up by tomorrow night. It will be the start of a busy patch for judgments.

Possession and evidence

Published

on 22 July 2008

in Housing law

. 0 Comments

North Devon Homes Ltd. v Batchelor [2008] EWCA Civ 840 concerned a claim for possession of an assured tenancy. At County Court, the claim was brought on grounds 10, 12 and 14 HA 1988. While the claim resulted in a postponed possession order for ground 10 rent arrears, the claims on ground 12 (non-performance of obligation) and 14 (nuisance/arrestable offence). The Circuit Judge had refused to make a possession order on grounds 12 and 14 on the basis that it was not reasonable to do so.

North Devon appealed that decision, arguing that the Judge took into an account an irrelevant matter, had failed to consider a relevant matter and failed to consider a relevant matter raised in the respondent’s evidence.

Briefly, the evidence that North Devon had put forward at the first hearing was of Ms B’s

conviction before Exeter Crown Court on May 2007 of possession of 7.5 grammes within 76 wraps or thereabouts of cocaine, a controlled drug of Class A with the intent to supply it, and also of money laundering. She pleaded guilty to possession of the cocaine with intent to supply, upon the specific basis that she had been asked to hold the drugs for her son and had agreed to do so intending to hand them back to him. However, she was prevented from doing so by the arrival of the police on 22nd September 2005 to execute a search warrant at the flat. Conversely, the jury convicted her of having laundered about £1600 on two specific occasions. The £1600 was part of a larger sum of £27,000 which had been laundered, not necessarily by her, over about a three month period. She had also pleaded guilty to a specific offence of possession of cannabis. She was sentenced to eighteen months imprisonment to run concurrently on the offences of possessing cocaine with intent to supply and on money laundering, with no separate penalty being imposed for the possession of the cannabis.

By the time of the substantive hearing, Ms B was released from prison and back at the property. Ms B gave oral evidence. North Devon apparently did not put forward witnesses at the hearing. In evidence Ms B admitted that she ‘may’ continue to use cannabis for pain relief (Ms B was 61 and in sheltered accommodation). The Judge found that there was not sufficient evidence to establish nuisance under Ground 14(a) or 14(b)(i) immoral or illegal purposes. However, the conviction clearly fell under 14(b)(ii). In deciding that it was not sufficient to make possession reasonable, the Judge said

Mr James (counsel for the respondent) argued that once the Court puts on one side, as it has to do, and as I have done, the complete absence of satisfactory evidence produced to establish nuisance or annoyance and looks at the defendant’s conviction for possession of 7.5 grammes of cocaine with intent to supply, this court must, as the Crown Court had to do so, accept the defendant’s basis of plea, namely looking after it for her son, intending to hand it back to him on one occasion only in September 2005. Whilst I would not necessarily agree with Mr James that this was merely a technical offence, I would nonetheless agree that in gradation of seriousness it is at the lower end of the scale of possession with intent to supply a Class A controlled drug. Insofar as the possession of cannabis is concerned, whilst of course this remains a criminal offence now of Class C, if every tenant of a dwelling house within the public sector was to be visited by a possession order because it was reasonable to make one, the courts would inevitably be swamped with such claims. The facts of this case as presented are wholly different from those in the Musah case [City Council of Bristol v Martin Mousah (1998) 30 HLR 32] and those in the Stonebridge Housing case. Having considered the available evidence and the arguments I do not therefore consider that it would be reasonable to make an order for possession under either Grounds 12 or 14 in this case.

North Devon’s grounds of appeal were that:

The Judge’s comments in the passage above were irrelevant to the extent that they addressed the likelihood of Ms B being rehoused. In addition, inasmuch as smoking cannabis was a criminal offence, it was for the courts to uphold the law not to be perceived as condoning illegal activities.

The Court of Appeal did not agree with that interpretation of the passage. All the Judge was addressing was the seriousness of the conviction for possession of cannabis. The Judge was not clearly wrong to reach the conclusion he did.

Secondly, North Devon argued that the Judge had failed to consider ‘previous warnings’ to Ms B, relying on a letter to her of Sept 2005 - not in evidence at the Court of Appeal but quoted in a skeleton argument.

You will remember that I visited you on 5 Auust 2005 following several complaints that had been made by those living around you. You will remember that one of the complaints was that you were having a steady stream of visitors to your home and it was alleged that you were involved in drug dealing or using. I am continuing to receive complaints about the number of visitors you have visiting you during the day.

The Court of Appeal found that this went to 14(a) - which had not been raised on appeal - but that in any event the Judge had dealt with the issue of visitors and rejected North Devon’s case, which decision was also not appealed.

Thirdly, North Devon’s evidence that Ms B would continue to use cannabis was no stronger than the ‘maybe’ that the Judge had addressed. There was no reason for the Court of Appeal to find that Ms B would continue to smoke cannabis.

In response to a submission from North Devon that ‘the wrong message would be given out’, Lord Justice Wall said:

In my judgment, there are two short answers to that submission, although neither is strictly necessary for the determination of this appeal. The first is that if there is a message in this case (and speaking for myself the case seems to me to turn on its particular facts and to raise no point of principle) it is that actions for possession are serious and regard must be had to the facts of the particular case. As I see it, the judge paid careful attention to the particular facts and weighed them up meticulously. The second follows from the first, namely that, on the particular facts of this case and as the case was presented to him, the judge was entitled to deal with the respondent’s convictions as he did, and he was thus entitled to hold, as he did, that the respondent’s breaches of her tenancy agreement did not bring her within the scope of this court’s decision in Bristol City Council v. Mousah: or, to put the matter another way, that they were not such as to make it unreasonable for the judge, to decline to make a possession order.

Adjourning pending Malcolm in the Lords

Published

on 3 June 2008

in Housing law

. 0 Comments

One of the three cases mentioned in S v Floyd as forthcoming test of the application of Lewisham v Malcolm on the application of the DDA to possession orders has been heard and adjourned by the Court of Appeal.

LB Croydon v Wright [2008] EWCA Civ 607 (not on Bailii) was adjourned until the Lords have heard Malcolm despite Croydon wishing to press ahead. Croydon were apparently concerned that the Lords judgment might not cover the broader issues of the Malcolm judgment, in particular concerning the mind of the alleged dicriminator. The Court of Appeal found that improbable, but suggested Croydon might intervene in Malcolm if they wished.

Croydon v Wright concerns eviction from temporary accommodation (non-secure tenancy) awarded after successful homeless application, s.193(2) HA 1996. The tenant built up rent arrears. A possession order was made - which was outright, but Croydon didn’t pursue eviction while mesne profits were paid regularly. The (ex)tenant applied for a suspension and claimed that her diabetes and dyslexia were disabilities which were connected to the accrual of arrears. This then went to appeal, Eady J ordering a remittance back to County Court to determine the factual evidence on disability and causation. This, I think, Croydon appealed to the Court of Appeal.

It is worth noting that LJ Jacob, LJ Tuckey and LJ Hughes all sound a clear concern over Malcolm’s apparent statement that the mind of the alleged discriminator was irrelevant to the fact of discrimination. LJ Tuckey notes that Novacold, which was taken as the authority for the proposition, was a judgment of LJ Mummery, who then took a very sceptical view of the Malcolm formulation in S v Floyd.

Clearly one portion of the Court of Appeal is distinctly concerned about the judgment of another portion, and messages are being sent to the Lords .

(Many thanks to J for the pointer and accidentally rescuing my day).

Article Series - Disability Discrimination

Previous in series: :Next in series

‛simply wrong-headed’

Published

on 25 April 2008

in Housing law and whatever

. 5 Comments

Apparently Wandsworth are very very unhappy with the Court of Appeal judgment in Wandsworth v Randall on underoccupation possessions via ground 16 HA 1985. So unhappy that they are lobbying Caroline Flint to change the law via the Housing and Regeneration bill.

There are, of course, extremely good policy reasons for underoccupation possessions. Multiple bedroom council properties are in extremely short supply and demand is high.

Wandsworth, however, are putting more than a little spin on this. Martin Johnson, Cabinet member for housing said:

Our concern is the Court of Appeal judgement provides an incentive for underoccupying successor tenants to artificially increase their household as a way to defeat such a possession application.

The judgment expressly said that artificial inflation of numbers of people living in the property would be an issue for reasonableness at the hearing. It is fully open to the landlord to present evidence on the issue. So to say

the case left landlords with ‘very little power’ to pursue ground 16 repossessions.

is nonsense.

But Mr Johnson is trumped by Brian Reilly, deputy director of housing, who fumes that this is

clearly a case where there has been an interpretation of the law that is simply wrong-headed.

Call me an old stick-in-the-mud, but that would be for the House of Lords rather the deputy director of housing of the frustrated claimant to decide.

I take it that this sound and fury means an application for permission to appeal to the Lords will not be forthcoming, but why ever not, Mr Reilly?

DDA and mandatory possession

Published

on 20 March 2008

in Housing law

. 5 Comments

S v Floyd [2008] EWCA Civ 201 is a Court of Appeal case in which the Disability Discrimination Act 1995 is considered in relation to a mandatory Ground 8 possession claim by a private landlord.

In some ways, there is nothing particularly surprising in the case - the Court found that the DDA was not engaged as there was no relation between the appellant’s disability (OCD in this case) and the rent arrears. No DDA defence had been raised at first instance, nor should it have been ‘obvious’ to the Judge that there may be one. In fact the appellant had given specific reasons for withholding rent to the first instance Court that were not connected to the disability.

On that basis, there was no need to inquire further into discrimination (including comparator) or justification.

So far, nothing out of step with Lewisham v Malcolm. As I have always maintained, against some scaremongers, Malcolm did not mean that a possession claim against a tenant with a disability was discriminatory per se. ‘Relation’ of disability to reason for eviction is a real test. As I also suggested in discussing Malcolm, appeals raising a DDA defence for the first time would get a tough hearing.

However, there is an issue raised by the Court that is of significance, but to my mind not adequately considered or argued. Does a DDA defence - (presumably ‘defence’ in the terms of Romano, rather than a DDA claim) apply to mandatory possession proceedings.

The sole judgment distinguishes Malcolm as follows:

As for Malcolm, although neither judge had the benefit of its guidance, as it was decided subsequent to their decisions, a number of points may be made showing that it does not govern this case.
First, the mandatory provisions of section 7(3) of the 1988 Act, which give the tenant a statutory right to a possession order against the tenant who is more than 8 weeks in arrears with the rent, did not apply in Malcolm. The local authority relied on its contractual right to possession.

Nothing further is said on this point, as the Court concludes that no disability discrimination arose in this case. But at 71 the Court asks the House of Lords to answer the urgent need for clarification on the scope of the 1995 Act.

I don’t see how Malcolm can be so simply distinguished, certainly without any further reasoning. I suspect that the Court is complicating issues for itself by casting disability discrimination as a ‘Defence’ to a possession claim, particularly in relation to circumstances where there can be no defence by statute (mandatory grounds).

Romano said that an argument of discrimination could be raised as a defence, under resonableness, in discretionary possession claims (at least against secure tenants), but this has led to it being conceived of as a defence per se, where Romano actually said that this was a matter of practical efficiency, rather than having to mount a counterclaim of unlawfulness.

Malcolm thoroughly confused matters by discussing disability discrimination as a ‘defence’ of unlawfulness against a non-discretionary possession order. In some ways, it would have been clearer if Malcolm had said that in such circumstances it should be conceived of as a counterclaim of unlawfulness, although, in practice, formally making the counterclaim would surely be unneccessary.

So when, as here, the Court is troubled by the idea of the DDA adding a defence to a ‘lawful’ mandatory claim, where statute actively rules out a defence, one answer is that the DDA doesn’t add a defence. It adds a counterclaim that the mandatory claim isn’t lawful, which, for reasons of practical utility is treated as a defence in hearing the claim.

There were some other issues on the District Judge not adjourning the hearing - principally on the basis that an issue of the appellant’s capacity was raised. The Court of Appeal found that:

There was nothing before the District Judge to suggest that S did not or might not understand the comparatively simple and straightforward issues raised in the proceedings on which his input was likely to be necessary.

And there was nothing before the Court of Appeal to suggest lack of capacity, either.

The Court’s ‘Exceptional Circumstances’ power to adjourn even a mandatory possession claim was not considered or exercised by the DJ. The Court of Appeal said

i) Non-receipt of housing benefit was not an exceptional circumstance, North British Housing Association v Matthews [2004] EWCA Civ 1736,;

ii) No application was made to the DJ for an adjournment on exceptional circumstances.

And that was pretty much it. There may be a further case, Bernstein v Tate, on s.21 possessions soon. Malcolm is to be heard in the week of 28 April by the House of Lords.

Article Series - Disability Discrimination

Previous in series: :Next in series

Payne-less

Published

on 19 March 2008

in Housing law

. 0 Comments

Porter v Shepherds Bush Housing Association [2008] EWCA Civ 196 is a Court of Appeal judgment on an appeal of an application for revival of tenancy where all the arrears were paid off on a breached suspended possession order.

The Court of Appeal was presented with the opportunity to follow its own 1958 decision of Payne v Cooper rather than the recent string of cases, (Burrows, Marshall, Aston, Ansell). The Court of Appeal declined the offer.

In the lead Judgment, Lord Justice Pill’s main reason for the choice is that Payne concerned an unconditional possession order (and whether it could be turned into a conditional order), rather than than the post HA 1985 rent arrears SPO where conditions are obligatory. The recent cases are, by contrast, exactly on point. The second reason is that Lord Evershed’s reference to non-jurisdictional matters in Payne may have influenced the decision.

The Court also considered a submission that a ‘paid-off’ SPO could be amended by the Court under the powers given in CPR 3.1(2)(a), so as to retrospectively give an extension of time for payment and removal of the instalment condition. This would then mean the Order could be discharged under s.85(4).

CPR 3.1(2)(a) provides:

“Except where these Rules provide otherwise, the court may –
(a) Extend or shorten the time for compliance with any rule, practice, direction or court order (even if an application for extension is made after the time for compliance has expired;”

Lord Justice Pill said no. There was no reason why the CPR should override the statutory provisions. There were no unforeseen facts or change in circumstances to make the order misconceived or inappropriate. The emergence of the ‘permanent trespasser’ condition in case law, after the SPO was made in this case, did not amount to a change of circumstances that would enable the court to rewrite its earlier order.

The same went for the Court’s power to amend the order retrospectively. Statute provided for amendment on application. No application was made and nothing else had arisen to permit the rewriting under CPR 3.1

The Appellant’s submission that Marshall, Aston and Ansell were per incuriam because CPR 3.1 had not been considered in them - as a rule which would have affected the decisions - fell on this finding. In any case per incuriam only applies to a decision made without knowledge of binding precedent or statute on the matter.

Article 8, raised as an issue for construing s.85 and CPR 3.1, may be engaged by an order denying revival, but doesn’t go anywhere because “the Marshall and Aston constructions are compatible with Convention rights” (para 55)

Lord Justice Sedley was rather more open, both to Payne and to the Art 8 argument. The HRA wasn’t in force when the appellant became a tolerated trespasser, so was of no avail to him, but the Art 8 issues could mean that a Payne approach was to be preferred and the statute so construed, to avoid the Aston trap.(paras 59-61)

Lord Justice Longmore rejects Payne. If it had been raised in Marshall v Bradford, it would have likely been distinguished for the reasons (para 65):

i)    that the word “discharge” was used in the order in Payne’s case;
ii)    that there was no equivalent of section 82(2) in the 1923 Act; the regime introduced by the 1980 and 1985 Housing Acts is not the same as that utilised by the old Rent Acts;
iii)    that the earlier court did not consider the problems set out in the second and third reasons of Chadwick LJ in rejecting the argument.

In any case, Chadwick LJ’s first reason for dismissing the ‘discharge’ argument was based on the terms of s.82(2) HA 1985, which had no comparator in the earlier acts in Payne.

Even if all that was wrong, LJ Longmore would still prefer to follow the recent cases, to avoid a ‘divided voice’ in the Court of Appeal(!)(para 66).

So that, for the time being, is that. A divided judgment, to be sure, but one that puts the quietus to any lower court following in the footsteps of Helena Housing .

Payne may yet surface again in the House of Lords in the Ansell and White, but until then, it is sadly a dead issue.

Article Series - Tolerated Trespassers

Previous in series: :Next in series

While waiting for Weaver…

Published

on 17 March 2008

in Housing law

. 7 Comments

I’m eagerly awaiting the judgment in R(Weaver) v London & Quadrant, but, in one of those quirks of synchronicity, Bailii has just put the Court of Appeal Judgment in Donoghue v Poplar Housing & Regeneration Community Association Ltd & Anor [2001] EWCA Civ 595 up online. It made an interesting re-read, thinking about the issues in Weaver.

I don’t want to rehearse the Donoghue arguments in their entirety. We know the basis of an intertwined history and provision of temporary accommodation post homeless application that the Court held up as the reason for finding public function, and I doubt the HRA arguments are of much use to Weaver, despite (or rather because) concerning mandatory possession (see below). But while browsing through, a few paras caught my eye. For example, para 46:

Many local authorities have transferred some or all of their housing stock to one or more RSLs. This has happened so far as Poplar is concerned. Poplar was created for the purpose of taking over part of the housing stock of the borough of Tower Hamlets [...] Mr Brockway states that as a matter of policy the Corporation has always asked RSLs to grant the most secure form of tenure available to its tenants. This will usually be achieved by granting periodic tenancies of which possession can only be achieved on discretionary grounds. Such tenancies are accepted by Mr Luba as providing the necessary protection which he submits is necessary to comply with Article 8. The Corporation requires that if a tenant has an assured tenancy, then an order for possession can only be sought if it is reasonable to seek the order.

So, the use of Ground 8 against previously secure tenants who had been part of a stock transfer is…? Here Tower Hamlets ‘asked the RSL to give the most secure tenancies’, but could this be seen as a requirement on stock transfer tenancies as in Jan Luba’s point? Donoghue doesn’t say so, but apparently because the Court was prepared to accept that an assured tena