Outstanding and Relevant

Scinto v London Borough of Newham [2009] EWCA Civ 837 is an appeal from Bow County Court on whether the tenant was still entitled to exercise her right to buy on terms first set out in December 1999.

Miss Scinto initiated the right to buy process in September 1999.  In December 1999 Newham sent an offer notice addressed to both Miss Scinto and her son detailing the offer price and the statutory discount that had been applied.  The offer notice also identified some structural defects.

In September 2000 Miss Scinto’s solicitors sent a surveyor’s report, identifying some serious structural problems, to Newham.  They told Newham that without extensive repair works she would not be able to get a mortgage and therefore asked that the right to buy be held in abeyance pending investigations by Newham’s insurers and any repair work that was found to be necessary.

The following month Newham agreed to hold the application pending the outcome of investigations.

Miss Scinto attempted to chase things up in January 2001.  She received a response from Newham stating that they asked for estimates for the repair work.  Once a winner was identified they would contact her to arrange access.  Newham also apologised for the delay, but the delays continued.  in May 2002 Newham contacted Miss Scinto to say that somebody would carry out the works at the end of that month.  That did not happen.

On 26 February 2003, with the works still not carried out, Newham served a Housing Act 1985, s. 140 notice on Miss Scinto.  A s. 140 notice requires the tenant to complete their right to buy purchase within a set time.  Such a notice cannot be served when “any relevant matter stated to be outstanding in a written notice served on the landlord by the tenant has not been agreed in writing or determined” (s. 140(4)(c)) and “relevant matters means matters relating to the grant” (s. 140(5)).

Miss Scinto did not respond to this notice, so on 30 April 2003 Newham served a second notice under s. 141(1) (the judgment refers to 140(1) on this point, but that must be a typo, see [9]).  This notice required her to complete the purchase within 56 days.  S. 141(5) provides that a tenant who fails to complete within the time allowed by a s. 141 notice has their right to buy claim withdrawn at the end of that time period.

To complete the background in December 2004 Miss Scinto issued disrepair proceedings against Newham.  Some repair work was carried out.  On 26 June 2006 her solicitors wrote to Newham asking to proceed with the purchase on the terms of the 1999 offer.  In November 2006 the disrepair proceedings were compromised without liability being admitted.

Miss Scinto sought a declaration that she was entitled to complete the purchase on the terms of the 1999 offer.  HHJ Barnett QC in the Bow County Court granted this on the grounds that the outstanding repairs were a relevant matter meaning that Newham were not entitled to serve the first notice.  Furthermore, it was unconscionable for Newham to issue the notices when they did and it would be inequitable for them to rely on the notices.

On appeal Newham argued four grounds.  Taking them in the same order as they appear in the judgment:

  1. They could rely on their notices, as it was for Miss Scinto to respond to the first notice by saying that the repairs were outstanding and, following Ryan v Islington, the outstanding repairs were not relevant matters.
  2. HHJ Barnett QC failed to make sufficient findings of fact to support a promissory estoppel case.
  3. Miss Scinto had said in January 2003 that she wished to proceed with her right to buy claim and could not therefore rely on Newham’s representations about repairs
  4. The original offer was invalid as it was made to Miss Scinto and her son; he was not entitled to be joined to the claim

Sir Anthony May gave the only judgment, with which Arden and Jacob LLJ agreed.  He dealt with the first part of ground 1 shortly.  The repairs were outstanding, so it was not open to Newham to issue the first notice.  It was not up to Miss Scinto to respond and point out the outstanding matters, the notice was simply invalid.

However, this only applies if the repairs were a “relevant matter”.  On this point Newham relied on Ryan v Islington.  In that case the Court of Appeal had held that unrepaired structural defects were not a relevant matter for the purposes of s. 140.  However, Sir Anthony May said at [17]-[19] that this was:

a decision to the effect that the existence of contended-for disrepair by itself does not entitle the tenant to defer the completion of the purchase until the repair has been carried out and that, accordingly, it is not a matter relating to the grant…

However, it seems to me that the facts of the present case are crucially different.  In the present case … the parties had in essence agreed that the right-to-buy process would be held in abeyance until the outcome of investigations and that the outcome of investigations embraced such repair works as those investigations indicated Newham should carry out.

Accordingly, the parties had … embraced the matter of carrying out repairs as being a matter relating to the grant…  Newham were not able to serve their first notice under section 140 of the 1985 Act because they were forbidden from doing so by the terms of section 140(4)(c).

Turning to whether there were sufficient findings of fact to support a promissory estoppel case, Sir Anthony May said that the findings of fact that were essential to the whole case were plain and sustained the promissory estoppel claim, at [22]:

There was a clear and unequivocal representation by Newham that they would not proceed with the right-to-buy process until the repairs were effected.  Newham plainly intended that this should affect the parties’ legal relations and Miss Scinto has plainly relied on it by not taking steps to proceed with her claim.

Thirdly, Miss Scinto had said in January 2003 that she wished to proceed with her right-to-by claim, but she had not abandoned her contention that Newham should carry out the repairs first.  It had been clearly said that she could not get a mortgage until the repairs were completed.

Finally, while Miss Scinto’s son might not have been entitled to be joined in the claim as he had not occupied the property as his only or principal home it was far too late for Newham to try and say that the whole process was invalid because of the form of a notice more than a decade old, a notice that Newham failed to produce.  All parties had proceeded for ten years on the basis that the claim was valid, and it was open to Miss Scinto to have the conveyance in her name alone.

Newham’s appeal was therefore dismissed.

About chief

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.
Posted in Housing law - All, right-to-buy and tagged , .

One Comment

  1. These old RTB disputes are high stakes poker for local authorities. The legally aided claimants, on the other hand, having nothing really to lose and a fat RTB old school discount to gain.

    Here, there was enough evidence to support an estoppel claim.

    What’s notable is rather than complex points of Housing law, these cases turned on basic contract principles…which may have been overlooked by the LA to their cost(s).

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