Gibbins v Gibbins (LANDLORD AND TENANT – Refusal to adjourn – AirBnB lettings) (2020) UKUT 335 (LC)

A breach of lease case in the Upper Tribunal which, despite the names, appears to be between two unrelated people. So I shall call them L – the leaseholder – and F – the freeholder – to avoid multiple Gibbins related confusion.

F had brought a First Tier Tribunal application for a determination under s.168(4) of the Commonhold and Leasehold Reform Act 2002 that L was in breach of lease, specifically by not using the flat as a private dwelling house in the occupation of one family only by virtue of the AirBnB lettings;  and by (a) using the flat in a manner which is a nuisance to the owners, lessees and occupiers of the other flats in the property and in the neighbourhood by unacceptable levels of noise emanating from the flat at anti-social hours on a recurrent basis and trespass on the adjoining property and (b) using or permitting the flat to be used for unlawful drug taking.

L did not attend the Tribunal hearing. The hearing started at 10 am. At 10.06 am L emailed the Tribunal asking for an adjournment, saying that he believed the proceedings had ben discontinued, and attaching a letter from his doctor about his mental health. The Tribunal paused for 30 minutes to consider and determined it was in the interests of justice to proceed. The FTT found all breaches of lease alleged to be established. The FTT refused a subsequent request from L for permission to appeal.

L appealed to the Upper Tribunal. The grounds of appeal were:

i) Ambitiously, given that this was a London FTT, that the FTT acted outside of their discretion under regulations 3 and 32 of the Residential Property Tribunal Procedures and Fees (Wales) Regulations 2016 in proceedings in his absence.

ii) That short letting of a part of the flat was not an ‘assignment’ for the purposes  of lease clauses that read:

Clause 3 (1) (g)  (i) not to assign charge underlet or part with possession of part only of the demised premises” and (ii) “… upon any underletting to obtain an unqualified covenant on the part of the underlessee with the Lessor not to assign underlet or part with possession of part only of the demised premises and to perform and observe the covenants and conditions of this Lease save for the covenant to pay ground rent and service charges to the Lessor”. Clause 3 (1) (h) not at any time during the term hereby granted to divide the possession of the demised premises by an Assignment or Underletting or parting with possession of part only …”.

iii) The FTT was wrong on the balance of probabilities to find illegal drug use at the property.

On i), L in his replies had acknowledged that the 2016 Wales regulations did not actualy apply, but did argue that the FTT had not had due regard to the doctor’s letter. The UT was troubled by the absence of an express reference to reading the doctor’s letter in the FTT’s refusal of permission to appeal, but given the 30 minutes the FTT spent considering the brief email, it must also have conidered the doctor’s letter. In any event:

That letter was not a particularly impressive, or compulsive, document to pray in aid in support of an adjournment application.  There is no indication that the writer was aware of the nature of the tribunal  proceedings or of the issues that they raised.  The letter merely refers to the appellant’s “normal capacity to manage his affairs” appearing “to have been compromised by” a recent episode; it advocates that the appellant’s “situation (someone with a chronic mental health issue)” was being manifestly worsened by his domestic situation and the pressures of judicial proceedings” which was “putting his mental health at significant risk”; and advocates “that he be allowed time to stabilise his mental health so that he can adequately manage the court proceedings that [he] is facing”.  No timescale was put upon the time that should be allowed for this.  There is force in the respondent’s point that prolonging the proceedings would only have served to continue to put the appellant’s mental health at risk.

The FTT had reached a proper decision to continue the hearing in view of rule 34 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

On ii) ‘assignment’ was a red herring.

it was never asserted, or determined, that the appellant had assigned the demised premises, as opposed to under-letting them on a short term basis without obtaining an unqualified government on the part of the underlessee with the landlord. The relevant covenants apply not simply to an assignment of the whole of the term of the lease, but also to a short term underletting; and it was this which the FTT found to have occurred. There is no proper basis for any challenge to paragraph 23 of the decision. The appeal on this ground is dismissed accordingly.

Further:

The Tribunal notes that there is no challenge to the FTT’s determination (at paragraph 28 of its decision) that, by reason of the Air BnB lettings, the appellant was in breach of the restriction in paragraph 1 of the second schedule to his lease that the flat might not be used other than as a private dwelling house in the occupation of one family only. That determination was clearly in accordance with the decision of the Tribunal in Nemcova v Fairfield Rents Limited (2016) UKUT 303 (LC). (Our notes on short let breach of lease cases)

On iii) this ground had some force. There was no challenge to the finding that L had caused or permitted the flat to be used for purposes from which a nuisance could arise. But the FTT’s finding that the flat had been used for an ‘illegal purpose’ was troubling:

because nowhere in the landlord’s application and original statement of case, his supplemental statement of case, or his second supplemental statement of case is there any allegation that the appellant has used the flat for any illegal purpose, as distinct from committing or permitting acts of nuisance.  In circumstances where the appellant was not present at the hearing, and his application for an adjournment had already been refused, the Tribunal considers that it was procedurally unjust, and thus an error of law, for the FTT to have proceeded to consider, and determine, adversely to the absent appellant, a matter that had not formally been put in issue before the FTT.  As the respondent points out in his reply, it was also unnecessary for the FTT to have proceeded to do so because they had already determined that the appellant had breached two earlier aspects of paragraph 1 of the second schedule (as to which there is no challenge on this appeal).  For these reasons, the Tribunal would set aside the FTT’s determination that the appellant has used the flat for an illegal purpose at paragraphs 32 to 37 of their decision.  However, this does not affect the FTT’s ultimate decision (at paragraph 1 (b)) that the appellant has breached paragraph 1 of the second schedule to his lease.

So the appeal succeeded in a very limited part, but the large majority of the findings of breach of lease by the FTT stood.

It is not perhaps a surprise that L was in person (although he had solicitors on related proceedings). As an appeal, this was nothing more than a delay.