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Housing case law - monthly update (December)

Ahern v Southern Housing Group [2017] EWCA Civ 1934

Court of Appeal

28 November 2017

The Court of Appeal has upheld a County Court ruling that a landlord’s service of a Section 21 notice was lawful – despite claims that the landlord had not complied with its own policies.

The landlord (Southern Housing Group) had granted the tenant (Mr Ahern) a “starter” or probationary assured shorthold tenancy in April 2012, later extending it by six months. Mr Ahern was a “vulnerable alcoholic” and during this time complaints were made against him for anti-social behaviour. A Section 21 notice was served on Mr Ahern in July 2013 and possession proceedings were issued in October 2013.

Mr Ahern contested the possession claim. It was accepted that the notice complied with the formal statutory requirements of Section 21; however, Mr Ahern argued that the notice was void because of public law errors committed by Southern Housing Group that pre-dated and bore upon its decision to serve it. He argued that Southern Housing Group had not followed its policy commitments to properly review his case, take into account his vulnerability and to support him. Southern Housing Group refuted these claims, arguing that Mr Ahern’s case had been reviewed and support had been offered to him.

The Court of Appeal dismissed Mr Ahern’s appeal and removed the stay on execution of the possession order.

Although this case turned on its own facts, the ruling is a reminder to social landlords that they must adhere to their internal policies – otherwise a tenant could seek legal redress in the courts. However, this ruling has also shown that it is difficult for a tenant to rely on minor internal policy failures when arguing that a landlord has acted unlawfully.

A copy of the judgment is available on request.

 

London Borough of Haringey v Ahmed and another [2017] EWCA Civ 1861

Court of Appeal

21 November 2017

The Court of Appeal has allowed an appeal by a local authority (London Borough of Haringey) against a High Court decision that had found that a husband (Mr Ahmed) who had taken sole responsibility for securing accommodation for his family had acted as agent for his wife when entering into a secure tenancy in their joint names.

It held that the High Court’s finding that Mr Ahmed’s wife had not been involved in, or informed about, the tenancy meant that the usual characteristics of an agency were absent. Consequently, in the absence of agency, Mr Ahmed had been the sole tenant – meaning that when he left the property, his wife could not defend possession proceedings on the basis that she was a joint tenant.

This ruling will assist local housing authorities in ascertaining whether an individual has acted as an agent for someone else and how this could impact on their ability to seek a possession order.

A copy of the judgment is here.

 

Mavris v Xylia [2017] EWHC 2949 (Ch)

High Court (Ch D)

1 November 2017

The High Court has confirmed how it deals with appeals from the county court that are based on the emergence of new evidence and which allege that the original decision was obtained by fraud.

The appellant (Ms Mavris) had sought possession of the property on the basis that the respondents (Xylia) - an aunt and niece - had failed to pay the rent due and had been unlawfully subletting the property. During the court proceedings, two tenancy agreements had been shown but there was a dispute as to which was the genuine agreement. The county court judge preferred the evidence of the Xylia and their witnesses, and found in their favour. In court, Xylia had disclosed a bank statement showing that one of them received housing benefit. However, after the trial, Ms Mavris obtained a redacted version of the tenancy agreement that had been included in the housing benefit application. This version was similar to the agreement produced by Ms Mavris in court, rather than the version produced by Xylia. Consequently, Ms Mavis argued that if her version was the genuine copy, the county court may have approached the issues of credibility in a different way.

The High Court held that the new evidence tended to show that the judgment in favour of the respondents in possession proceedings had been obtained by fraud, and the issue of fraud was remitted to the county court to be determined on the basis of proper pleadings of the fraud allegations. It gave directions that if the county court decided that no fraud had taken place, then the appeal would stand dismissed; however, if the county court decided that fraud had been proved, then the appeal would be allowed and there would be a retrial of the claim before the same judge dealing with the fraud trial.

A copy of this judgment is available on request.

 

Metropolitan Housing Trust Ltd v RMC FH Co. Ltd [2017] EWHC 2609 (Ch)

High Court (Ch D)

24 October 2017

The High Court has considered whether the head tenant of a block of flats is able to release its right of light to enable development of an adjoining site.

Metropolitan Housing Trust and the freeholder of a block of flats (RMC) both claimed that they had enjoyed a prescriptive right of light over the developer's site, and that the development would interfere with that right. RMC argued that the Housing Trust could not release the right, as it would breach the terms of the headlease. The Housing Trust sought a declaration that it was entitled, in exchange for compensation, to release the owners of the proposed new building of the right to light enjoyed by the block of flats.

However, the High Court refused to give a declaration that the Housing Trust could release the right of light appurtenant to the headlease without RMC’s consent because there was insufficient evidence to decide that the new building would result in an actionable interference with the right of light.

This case highlights that a tenant can claim the benefit of an easement which has been acquired as appurtenant to the freehold, even after a lease is granted. This will be of particular interest to landlords and tenants where the dominant land is subject to a lease, as it shows that consideration should be given to who should be a party to a release of a right of light.

A copy of the judgment is here.

 

Walcott v Jones

County Court (Central London)

15 November 2017

In June 2016, the appellant landlord (Ms Walcott) served on the tenants (Jones) a section 21 notice stating that she required possession of her property. She argued that the property had been let to the tenants on an oral monthly tenancy, which had begun in August 2007. The tenants asserted that the notice was invalid because the landlord had not complied with the statutory requirements under section 21A and 21B of the Housing Act 1988, including the requirement of the landlord to obtain a gas safety certificate, energy performance certificate and provide information about the rights and responsibilities of the landlord and tenant under an assured shorthold tenancy (which had been introduced by the Deregulation Act2015.)

The district judge held that the section 21 notice was invalid and struck out the claim for possession. Ms Walcott appealed.

The County Court allowed the appeal. It held that a periodic tenancy which ran beyond its original term was “granted” when it was initially entered into. There was no re-grant at the end of each period of the tenancy, meaning that Ms Walcott had not been required to comply with the statutory requirements introduced in 2015 by the Deregulation Act 2015 before serving a section 21 notice.

A copy of this judgment is available on request.

 

Brooker & Wilson v St Paul (unreported)

High Court (QBD)

13 October 2017

The claimants (Brooker and Wilson) were administrators of their deceased sibling’s estate, which included a shared interest in a flat. The occupier and owner of the other share in the flat (Ms St Paul) had lived with the deceased for a number of years. Ms Paul had the option to either buy out Ms Brooker and Ms Wilson’s interest in the flat, or offer up vacant possession. Neither of these things happened and Ms Brooker and Ms Wilson obtained a possession order. At a later date, Ms Paul re-entered the property and Ms Brooker and Ms Wilson applied for a writ in the High Court - the possession order was enforced. Ms Paul applied for the writ of possession to be set aside, arguing that she should have received notice of the application for the writ.

The Court dismissed the appeal, finding that Ms St Paul had been notified of the proposed application by letter. She knew that a possession order had been made earlier, that her eviction was likely, and she could therefore have made an application for relief.

The ruling provides further guidance for landlords who want to enforce possession orders in the High Court.

This case is unreported.

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