In the end, I couldn’t resist writing this one up from the report in January 09’s LAG updates. It is a very late report and only a County Court decision, but is a) just too topical for these insolvent times and b) vaguely technically interesting.
Lambeth LBC v Grazette (Lambeth County Court 7 November 2008) was an application to revive a secure tenancy under s.85 HA 1985.
Ms Grazette was Lambeth’s secure tenant. An SPO on rent arrears was made in June 2003 and breached by Ms Grazette afterwards. In January 2005 Ms Grazette was adjudicated bankrupt, which was automatically discharged in June 2006. In 2008 Ms Grazette applied under s.85 to revive the tenancy. Lambeth sought conditions under s.85(3) preventing Ms Grazette from pursuing an historical disrepair claim on revival.
The DJ granted the revival, but, while conditions should not be imposed merely because of failure to comply with previous orders, including the SPO, and arrears of rent, the bankruptcy altered the position.
Insolvency Act 1986 s.278 meant that the bankrupt’s estate was crystallised. S.283(1) and s.436 meant that the definition of property encompassed the prospective (or here retrospective) cause of action. Hence the cause of action and the benefit of it vested in the trustee in bankruptcy in January 2005. The discharge released Ms Grazette from her debts, but the estate remained vested in the trustee.
Ms Grazette therefore had no locus standi to pursue a claim for disrepair prior to January 2005 and there would be no personal benefit for a claim for the period prior to discharge.
The DJ imposed a condition preventing a claim for damages for disrepair. This did not mean she could not claim for specific performance for extant disrepair.
Presumably, this would hold true for a bankrupt secure tenant – a claim for damages would have to be made by the trustee, while the tenant bankrupt could claim only for specific performance.
Interesting – and a decision made before the White v Knowsley etc. judgment in the Lords. It would be interesting to see if that made any difference to the imposition of conditions – certainly it would seem to limit the wide discretion the DJ claimed under s.85(3)(b).
Also, what if Ms Grazette had only raised a claim in respect of June 2006 onwards – post discharge. Surely the same point would not apply?