Our thanks to Haroon Sarwar of TV Edwards and Marina Sergides of Garden Court for the details of this  county court possession case.

Tower Hamlets Community Housing v The personal representative of Joseph Desir & Ors. County Court at Clerkenwell & Shoreditch. 19 April 2023.

The late Mr & Mrs Desir had an assured tenancy from Tower Hamlets Community Housing. They both died in March 2020. Their daughter, Ms S Desir, applied to succeed on the basis of having lived there and having been her parents’ carer for the last 10 years. THCH made several demands for further evidence, and served notice to quit on the property and on the Public Trustee. THCH then brought the present possession proceedings, despite not having made a decision on succession.

Prior to commencing the possession proceedings in May 2021, THCH had served a section 13 ‘notice of rent increase’ on 1 Match 2021, to take effect on 5 April 2021. The increased rent was paid.

Ms S Desir was joined to the possession claim and defended on various grounds, including succession, but the key ground was that the notice of rent increase had created a new tenancy.

While making payments accepted as use and occupation charges does not in itself create a new tenancy, a notice of rent increase may do so where the tenant can show that this was the intention of both landlord and tenant – Vaughan Armatradung v. Sarsah (1995) 27 HLR 631, CA.. It was accepted in Leadenhall Residential 2 Ltd v Stirling [2001] EWCA Civ 1011 that a demand for and acceptance of a notice of increased rent created a new tenancy.

In this case THCH tenancy agreement terms and conditions stated

“In accordance with the provisions of Ground 7 acceptance by THCH of Rent after your death shall not be regarded as creating a new Periodic tenancy unless THCH agrees in writing to a change in the amount of Rent, the period of the Tenancy or the Premises, which are let or any other term of the tenancy”

Ms Desir argued that this showed the landlord’s intention. There had additionally been no communications relating to use and occupation charges, only rent.

The District Judge agreed, finding that a new tenancy for Ms Desir had been created as of 5 April 2021, and dismissing the possession claim.