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27/02/2022

Excluded grounds of possession and subsequent grounds

Poplar HARCA v Kerr. Clerkenwell & Shoreditch County Court. February 2022.  DJ Bell (Unreported, we’ve seen a note of extempore judgment.)

Our thanks to Daniel Skinner for the note of judgment in this case, which is of interest on the argument that the tenancy agreement excluded reliance on subsequently introduced grounds of possession.

Ms Kerr was Poplar’s tenant following a stock transfer by LB Tower Hamlets in 1999. Her tenancy agreement (as with many stock transfer agreements) had a clause stating which grounds of possession Poplar could rely upon (effectively ground 7 Schedule 2 Housing Act 1988 as the only mandatory ground and the rest being discretionary grounds). The agreement went on to say:

“for the avoidance of doubt, the HARCA hereby declares it will not seek to use grounds: 1, 2, 3, 4, 5, 6, and 8 to obtain possession” (these being mandatory grounds.)

In 2017, a suspended possession order was made on grounds of rent arrears. In November 2020, Ms Kerr’s adult son was convicted of a firearms offence in respect of an incident at the property. In February 2021, Poplar served a notice seeking possession, including on ground 7A, 10, 11 and 14, and in June brought an application to vary the suspended possession order to an outright order on the basis of ground 7A, 10, 11 and 14.

Of these grounds, 7A is the mandatory ground. Ground 7A was, of course, brought in by the Anti-Social Behaviour Crime and Policing Act 2014 in October 2014.

Ms Kerr’s defence was, in part, that the tenancy agreement prevented Poplar from using any but the grounds of possession it specified, and that Poplar had agreed in the tenancy that it would not use mandatory grounds.

The District Judge considered North British Housing v Sheridan [1999] 2 EGLR 138 in which the Court of Appeal had considered a tenancy agreement that had specified that only Housing Act 1988 grounds for possession could be used and that the landlord would only seek possession on specified grounds. The District Judge considered that the Court of Appeal had held that it was a necessary implication of an assured tenancy agreement, governed as it was by statute, that amended, new or substituted grounds could be relied upon.

While the agreement in North British did not have the specific declaration of exclusion of certain grounds, that clause could not be extended to any future (as was) new mandatory grounds. In any event, the agreement included one mandatory ground, so it could not be taken as a blanket exclusion of mandatory grounds.

A further argument that section 9 Housing Act 1988 could not be used to vary the possession order in this case because s.9(6) excluded mandatory grounds was unsuccessful. The exclusion was for the original ground of possession, which was discretionary in this case. S.9 did not preclude the underlying grounds that could be relied upon for a variation of the order.

Equality Act assessments and PSED arguments were also unsuccessful and outright possession order made.

While drafting this note, I also came across this note of Red Kite Community Housing Limited v Finlay in 2015, which I had not seen before. In this county court appeal, HHJ Bloom reached effectively the same decision, via North British Housing v Sheridan, that an identical tenancy clause to that in Kerr did not exclude subsequently introcuded grounds of possession.

 

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

4 Comments

  1. AB

    In cases like this I’ve previously intended to argue that the implication, as set out in Sheridan, that a landlord may rely upon any new statutory grounds should be considered with Pollards Hill Housing Association v Marsh [2002] HLR 35. There, the Court of Appeal found, in a case where the tenancy agreement specified that possession could only be sought on the basis of wrongdoing by the tenant and not her visitors, the right to claim possession relying upon ground 14 (which includes wrongdoing by visitors) was restricted by the tenancy agreement. The two of three cases like this that I’ve dealt with have settled without trial, but the intended argument was that the specification in the tenancy agreement that mandatory grounds wouldn’t be relied upon was analogous to the wording in Marsh that possession would only be sought on the basis of the tenant’s wrongdoing.

    Reply
    • Giles Peaker

      But in this instance, the tenancy agreement did specify that one mandatory ground did apply, so the argument that there was a blanket exclusion of mandatory grounds including any subsequent ones failed.

      Reply
  2. Andrew m

    Yes had it said with the exception of mandatory ground 7 or like, that would have reflected , accurately, their intention. Strange this as overseeing two stock transfers back in 00’s this exact wording came up and it was changed.it was then ltbh stock.

    Reply
    • Giles Peaker

      It did include mandatory ground 7 – that was one of the reasons the defence failed, as a mandatory ground was included.

      Reply

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