A rare Rent Act 1977 possession case, with possession sought as 'reasonably required' under Case 9 Of Schedule 15 of the 1977 Act via section 98(1).

Miles v Law [2012] EWCA Civ 1756 [Transcript on Lexis. Not on Bailii yet]

This was a permission to appeal hearing, with Mr Law the appellant from a District Judge's first instance decision to grant Mr & Mrs Miles a possession order. Mr L had been the Rent Act tenant of the property for some 30 years. Mr & Mrs Miles sought possession to provide accommodation for their adult son and daughter. Section 98 (1) provides:

Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either—(a) the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or (b) the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act.

Case 9 – a discretionary ground – states:

Where the dwelling-house is reasonably required by the landlord for occupation as a residence for— (a) himself, or (b) any son or daughter of his over 18 years of age, or (c) his father or mother, or (d) if the dwelling-house is let on or subject to a regulated tenancy, the father or mother of his wife or husband, and the landlord did not become landlord by purchasing the dwelling-house or any interest therein after— (i) 7th November 1956, in the case of a [tenancy which was then a controlled tenancy]; (ii) 8th March 1973, in the case of a tenancy which became a regulated tenancy by virtue of section 14 of the Counter-Inflation Act 1973; (iii) 24th May 1974, in the case of a regulated furnished tenancy; or (iv) 23rd March 1965, in the case of any other tenancy.

The circumstances were that Mr & Mrs M stated that they wanted the property for their adult children, son and daughter, who had what was accepted to be a total income of £26,000 pa between them. The evidence was that the son was effectively homeless and the daughter was not earning a substantial income. Mr & Mrs M were approaching retirement and were found to be not wealthy. Mr L had lived in the property for 30 years, had lost his employment in 2002. He worked two days a week and was on means tested benefits. The Court below heard evidence that there were premises that 'with diligence' would be available to Mr L to rent:

There was one property available on 25 March according to the website of Gumtree Property, an organisation which makes properties available in these circumstances. There were (1) emails and letters between estate agents and the respondents confirming that they would consider Mr Law for a property currently on the books notwithstanding that he would need housing benefit to pay his rent, and (2) the existence of Outreach Housing and four websites solely dealing with applicants on housing benefit.

On carrying out a balancing exercise, including relative hardship, the court below had decided it was reasonable to make a possession order. Mr L sought permission to appeal. Mr L argued firstly that the judge below had failed to apply the test in Kennealy v Dunne [1977] 1 QBD 837 properly.

The court is required to be satisfied that the premises are reasonably required, but on the authority of Kennealy v Dunne that reasonable requirement must be something more than a desire but less than a necessity. Mr Topal [for Mr L] points out that Mrs Miles conceded during her examination that it was her desire that her children should live together inthe premises. She did not put it as high as a requirement.

This should have been 'the framework' within which the District Judge considered whether the requirement that it was a requirement had been satisfied.

The Court of Appeal disagreed. It was for the Judge to satisfy herself whether it was a reasonable requirement, on all the evidence. The Judge was not bound by a statement either way by the landlord. If the landlord had said the premises were reasonably required, the Court would still have had to form its own view.

On comparative hardship, “The court has to weigh up the comparative hardship to the tenant and to the landlord and be satisfied that there would be greater hardship to the landlord in refusing possession”. Mr Largued that the decision the District Judge had reached was perverse when the disparity of available rented properties of this nature was considered.

The evidence on his submission was that the children would find it relatively easy to find premises to rent, and that the appellant would find it difficult. And that, in fairness, is not a point in relation to the appellant's children that the District Judge goes into. But the reason, in my judgment, why the District Judge did not go into that is that the District Judge was persuaded that what the landlord wanted was that their children should have security. Indeed they wanted to subsidise the rent to a small extent for the benefit of their children, given their limited income. So the question of hardship fell to be assessed on the District Judge's approach to the matter by reference to comparing the inability to give security in the accommodation so that the children could have some security, and indeed could live together, as they wished, as opposed to the availability of premises for rent to the appellant.

As a comparative judgment it was not undermined by the Judge's failure to consider whether the children would find it relatively easy to obtain rented property.

Mr L next argued that in using the expression 'wasting asset' about Mr & Mrs M's lease, the Judge had taken into consideration the value to them of the property without a sitting Rent Act tenant. But this should not have been considered as it was always the case that there would be a relative windfall to the landlord in obtaining vacant possession in terms of the value of the property. In any event Mr & Mrs M could have raised funds to extend the lease well beyond and possible occupation by Mr L.

The court of appeal said:

I accept that, but in my judgment by using the expression “wasting asset” the District Judge is not referring to that benefit. I would accept that there would be a good argument for saying that that sort of benefit, the windfall benefit that Mr Topal speaks of, would be irrelevant. But, in the case of a wasting asset, it seems to me that what the District Judge was really taking into account was the fact that having a tenant in possession for many years made any investment in buying, or extending, the lease more risky and less attractive, and that that was a relevant factor.

Lastly, Mr L argued that the court should not have found that an alternative property was 'with diligence' available to Mr L, as the expert evidence had been against Mr & Mrs M's position.

The Court of Appeal was not prepared to overturn the Judge's decison on this point.

The District Judge drew from that material that, notwithstanding that the expert evidence had not been in favour of the respondent's position, there was sufficient evidence for the court to be satisfied that the defendants would be able to obtain alternative accommodation.

10. That, again, was a finding of fact for the District Judge. The District Judge heard witnesses as well as looking at documentary evidence, and has seen and heard and learnt things in the course of this case which simply did not appear in the judgment. In those circumstances, giving the advantages enjoyed by the District Judge, an appellate court really is in a very difficult position and is most unlikely to interfere. It would take a much stronger case than this for the court even to consider it.

Despite the quality of the argument presented, permission to appeal refused.