Brief notes on an assortment of cases.

Kensington & Chelsea RLBC v Airbnb Payments Ltd (2022) EWHC 2209 (Ch) – not on Bailii

Kensington sought a Norwich Pharmacal order against Airbnb Payments Ltd to require disclosure of whether there were booking for flats in specified blocks owned by Kensington within a specified period and details of those bookings.

The order was granted. Any short lets of the flats by RBKC tenants was likely to be a criminal offence under the Prevention of Social Housing Fraud Act 2013 and so the order was appropriate.

This is an effective way for social landlords to establish short let use of their properties, which would either be an offence by tenants or in breach of lease by leaseholders,, at least where the buildings can be specified.

Ibrahim v London Borough Of Haringey & Anor (2022) EW Misc 9 (CC)

Mr Ibrahim had been accommodated in a studio flat during ‘Everyone In’, arranged through LB Haringey. Mr I was sleeping rough and an asylum seeker with no housing or benefit rights. Mr I brought a claim for £600,000 (!) for alleged illegal eviction from the studio flat (he was moved to hotel accommodation), and for related harassment,

HHJ Luba KC dismissed the claim. There was no tenancy, Mr I had no contract and there was no intention to enter legal relations. There was a bare licence, but it was not intended ‘as a dwelling’ and therefore Housing Act 1988 section 79 did not apply. Nor did the Protection from Eviction Act 1977.

The claim in harassment failed. Incidents alleged to be ahrassment had either not taken place, or did not amount to harassment.

HHJ Luba LC offers the following comment:

However, this judgment does demonstrate how little attention is given by some local authorities and some accommodation suppliers to the legal implications of the agreements they enter into with each other and the arrangements they make (or one of them makes) with the ultimate occupiers of temporary accommodation. The cases of the parties to these proceedings are pleaded in alternatives given the uncertainties as to how the law might apply to the relatively commonplace events I have described above. As is so often the case in this subject area, the legal waters are further muddied by agency arrangements and, as the present case illustrates, by sub-agency arrangements.

Which I think is a judicial version of our repeated motto – everyone needs a housing lawyer with them at all times.

Brake & Anor v Guy & Ors (2022) EWHC 2797 (Ch)

The unstoppable juggernaut of the Brake v Axnoller litigation rumbles on. This is just one of many recent judgments, with Court of Appeal and Supreme Court decisions to come. In this one, the Brakes continue their contribution to the law on the Debt Respite Scheme moratoriums (previous contribution here). The Guy parties had previously obtained a Third Party Debt order, enforcing a costs order, that required Mr Brake to take various steps to assist in the transfer of his pension fund to the Guy Parties. Before these were complete, Mrs Brake entered a Mental Health Crisis Moratorium and asserted that this prevented any further action, as the debt was one for which she was jointly liable. The Guy parties applied for permission to enforce the TPDO under regulation 7(2)(b) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020.

The Court granted that permission. The enforcement action was nearly complete and no remaining steps required action by Mrs Brake. The Brakes had delayed taking steps until Mrs Brake could enter her moratorium. The enforcement step was not detrimental to Mrs Brake – it was not her asset involved and it would reduce her liability. It would not undermine the moratorium, as Mrs Brake would not be required to do anything and there would be no change to her eligible debts under the moratorium.

Mayor and Burgesses of the London Borough of Lambeth v Kelly & Ors (LANDLORD AND TENANT – SERVICE CHARGES – section 20ZA – timing for application – exercise of discretion – importance of finding relevant prejudice) (2022) UKUT 290 (LC)

This was Lambeth’s appeal of a First Tier Tribunal decision refusing Lambeth’s application for dispensation from section 20 consultation requirements in respect of roof repairs following a leak. The FTT had refused dispensation on the basis that there had been a previous Tribunal decision limiting the recoverable costs to £250 because of the failure to consult and

“The Tribunal found that the Mrs Danvers-Russell suffered prejudice because she was unable to budget for the costs and that she had lost the opportunity of establishing prejudice because of the inadequacy of the information provided by the council and the delay in its provision.”

The Upper Tribunal reversed that decision. Firstly, there was nothing in the statutory scheme

which could support the conclusion that a section 20ZA application cannot be made after a section 27A determination has been issued.

Secondly, and although not directly relevant to the appeal, rule 9(3) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 gives the FTT discretion to strike out a matter where “the proceedings or case are between the same parties and arise out of facts which are similar or substantially the same as those contained in a proceedings or case which has been decided by the Tribunal.” That is not the basis upon which the FTT made its decision in this case nor would it have been appropriate to do so.

On the issue of actual prejudice, following the Supreme Court in Daejan Investments Ltd v Benson [2013] UKSC 14 (our note), there had to be evidence of loss/prejudice.

I have no doubt that Mrs Russell-Danvers is aggrieved about the way in which the issue of the cost of the works was handled by the council. She should have been notified about the works before they took place and she should have been provided with information about the works without having to enter into lengthy correspondence with the council. The council have specific duties under section 18-30 of the 1985 Act which have been disregarded.

However, there is no evidence of actual prejudice. The prejudice identified as a consequence of being unable to budget is disregarded and what is left is in my view insufficient. Even accepting that Mrs Danvers-Russell was hampered in demonstrating prejudice by delay, I consider that it was still incumbent upon her to show some type of loss. For example, if she had shown that she had been asked to pay additional service charges because the works needed to be re-done or that additional unnecessary works had caused her inconvenience then that might have amounted to relevant prejudice. Even then, it might have been reasonable to give the council dispensation but on conditions.

Lastly, an interesting if very brief First Tier Tribunal decision on a Tenant Fees Act 2019 application against Foxtons – LON/00AY/HTC/2022/0001