HOUSING LAW UPDATE 2010
1. Possession hearings
Is a possession hearing a trial?
Forcelux Ltd v Binnie [2009] EWCA Civ 854
This was the Court of Appeal hearing of an appeal from a decision by a Circuit judge on an appeal from an order to set aside a possession order and grant of relief from forfeiture. It is potentially an important case for anyone looking to apply for set aside of a possession order made at first hearing of a possession claim, as it gives the Court a broader discretion to make a set aside order under CPR 3.1(2) than the strict requirements of CPR 39.3.
In July 2007, Forcelux began County Court possession proceedings. The claim form gave the flat as Mr Binnie’s address. A hearing was set for September 2007. Mr Binnie was unaware of proceedings as he was not living at the flat. At the September 2007 hearing, in the absence of Mr Binnie, a possession order was made. It was not until February 2008 that Mr Binnie made an application to set aside the possession order.
Forcelux contended that Mr Binnie had not ‘acted promptly’ once he found out the possession order had been made, as required by CPR Rule 39.3(5)(a). CPR 39.3(5) states that the Court may only grant a set aside application if the applicant:
(a) acted promptly when he found out that the court had exercised its power to……enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at trial.
So acting promptly is a requirement before a set aside can be granted. Forcelux argued that the DJ had therefore been wrong to make the set aside order.
But Rule 39.3 is expressly concerned with ‘trial’. Was the hearing of September 2007 a trial? Rule 55, dealing with possession proceedings states at 55.1 that once the claim has been issued, the Court is to fix a date for ‘the hearing’.
The Court of Appeal was not persuaded that the hearing of September 2007, the first listed hearing after issue, was a trial:
“ The more usual sort of case, in a busy possession list with perhaps 5 to 10 minutes allowed for each case, will be an undefended case where the defendant, if he attends at all, has nothing to say. The judge will look at the evidence from the claimant – probably all the evidence there is – and make a determination and decision: he will satisfy himself that the case is made out on the claimant’s evidence and satisfy himself that any necessary statutory requirements are fulfilled; he will make a possession order (suspended or not as the case may be).
[...]
I do not consider that such a process of determination and decision can sensibly be called a trial”.
As 39.3 was not at issue, ‘acting promptly’ was not a requirement, but simply a factor to be taken into account. The rule that covered the situation was Rule 3.1(2) (m) “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”, which gave ample power to set aside an order if the interests of justice demand it. Further, Rule 3.1(7), providing a power of the court under these Rules to make an order, includes a power to vary or revoke the order, shows that there is a power to do so under Rule 31.2(m).
In considering the exercise of the power under Rule 3.1(2) as the Circuit Judge had done, the checklist in Rule 3.9(1) is a useful guide, although not directly applicable. In this case:
a. The interests of the administration of justice; there is nothing which suggests that the interest of the administration of justice would be prejudiced or compromised if the application for relief were granted;
b. Whether the application for relief has been made promptly; I doubt very much that it was and proceed on the footing that it was not;
c. Whether there is a good explanation for the failure; none has been provided. HH Judge Hampton herself observed that there was no explanation (but see paragraph 65 below);
d. Whether the failure was caused by the party or his legal representative; the failure appears to have been entirely that of Mr Binnie’s solicitors;
e. The effect which the failure to comply had on each party; Mr Binnie will lose a valuable asset for want of payment of a comparatively modest sum which he attempted to pay by cheque in December 2007, his cheque being returned.
f. The effect which the granting of relief would have on each party; the Lease would be reinstated. Forcelux would lose what I think can fairly be described as a windfall.
Islington LBC v Cecil and Grace Markland, Clerkenwell and Shoreditch County Court, 17/07/2010
This County Court appeal case is interesting as it raises the question of where the boundaries of the exceptions in Forcelux v Binnie may be.
Briefly, Islington brought a claim for possession against Mr M. He and Mrs M had been joint secure tenants. The relationship broke down and after leaving the property, Ms M served a Notice to Quit in May 2009. She applied to Islington for rehousing. There were disputed allegations of domestic violence.
At first hearing, Mr M handed in a pro-forma defence which said, in effect, that he had not been given a fair hearing by Islington and that he had a public law defence. The District Judge did not ask Mr M to elaborate on his defence, but held that there was no defence, the joint tenancy having been lawfully determined by Mrs M. A possession order was made, together with a judgment on supposed rent arrears, asserted without evidence by Islington (and the amount of which was later conceded to be substantially wrong).
Mr M applied to set aside the possession order on the basis of Forcelux v Binnie, and filed a full public law defence. A different DJ heard the application, held that he had no power to set aside and the appropriate route was an appeal via CPR 52. Permission to appeal granted.
On appeal, the Circuit Judge refused to set aside the Order. Using CPR3 was not appropriate in this case. Mr Markland had attended and produced a defence. However, he granted the appeal against the possession order.
What does it mean for you?
· More scope to set aside possession orders
· Difficult decision over whether to apply to set aside or appeal.
2. Nuisance and Anti-social behaviour
Can a landlord be liable to tenant A for the anti-social behaviour of tenant B or others?
Octavia Hill Housing Trust v Terri Brumby [2010] EWHC 1793 (QB)
Ms Brumby was the assured tenant of Octavia Hill Housing Trust, living in a flat in a block. She alleged that visitors to a tenant in another flat in the block were responsible for nuisance in the common parts (the approach to the flats, the communal stairs and stairwell, etc). Those common parts were retained by the landlord. The landlord had notice of the nuisance and had failed to take steps to abate it within a reasonable time. Accordingly, she argued that the landlord had adopted the nuisance.
The landlord applied to strike the claim out, arguing (a) that Mowan, Hussain et al made clear that it was only in exceptional circumstances that a claim for nuisance could be maintained against a landlord in respect of acts by third parties and (b) Southwark LBC v Tanner [2001] 1 AC 1 prevented the court from imposing obligations on the landlord that went above and beyond the terms of the contract or statutory obligations. In the County Court, the claim for breach of the covenant for quiet enjoyment was struck out, but the claim in nuisance was allowed to proceed; the case was entirely factual and would have to be determined at trial and the rule in Sedleigh-Denfield was not affected by Mowan et al.
In the High Court Mackay J agreed with HHJ Gibson. Whether or not the landlord had adopted the nuisance was a question of fact that had to be determined at trial. Whether or not the nuisance had been adopted was governed by the Sedleigh-Denfield decision, which had not been affected by Mowan et al. The case would have to proceed to trial.
What does it mean for you?
· “where land is let by a landlord to a tenant the landlord is not liable for acts of nuisance permitted by his tenant unless he has specifically authorized them”
· Passive inaction by a landlord may fix them with liability
· Landlord may be liable for anti-social behaviour perpetrated by tenants and others in common parts.
3. Tolerated Trespassers
Representatives of a deceased tolerated trespasser can apply to revive the tenancy
Austin (FC) (Appellant) v Southwark London Borough Council (Respondent) [2010] UKSC 28
Alan Austin was the original tenant. A suspended possession order was made. The order was breached and Alan Austin was a tolerated trespasser from 1987. Southwark did not enforce the order. In 2003, on his account, Barry Austin moved in with his brother to care for him as he was by then seriously ill. In February 2005, Alan Austin died. In September 2006 Southwark served Notice to Quit on Barry Austin and then began possession proceedings in January 2007. It came as a complete surprise to Barry that there had been a possession order and certainly that his late brother was a tolerated trespasser.
Barry Austin applied to the County Court to be appointed to represent Alan’s estate in the 1986 possession proceedings under CPR 19.8 and, if appointed, to apply for an order under s.85(2)(b) Housing Act 1985 postponing the date of possession such that Alan’s tenancy would have existed at the date of his death and Barry would have, on his account, succeeded to the tenancy.
Overturning Brent London Borough Council v Knightley (1997) 29 HLR 857 and the decisions of all the lower courts, the Supreme Court decided that the right to apply for a postponement of an order for possession was an interest in land capable of being inherited, and that Alan’s estate could apply under s.85(2)(b) to apply to postpone the date of possession, and thus revive the secure tenancy.
What does it mean for you?
· Individuals who would otherwise succeed to a tenancy, but find out that the deceased tenant was a tolerated trespasser, now may be able to succeed.
· Useful comments on tolerated trespassers generally, in particular on applications to revive under s85(2) “Even if some local authority landlords might have welcomed not being under a contractual obligation to repair properties for which the occupier was not paying the full rent, they would also have acknowledged that it could not be right for them to be able to charge the equivalent of the full rent which was calculated on the basis that they did have an obligation to repair.” Baroness Hale at (54)
· What about applicability to Schedule 11 applications? - ,Chase v Islington LBC Clerkenwell & Shoreditch County Court 30/07/2010
4. Homelessness
Refusing s188 temporary accommodation before completing s184 enquiries and making a decision unlawful
Policy of sending homeless applicants back to the accommodation they have come from until enquiries are complete unlawful
Kelly & Mehari v Birmingham City Council [2009] EWHC 3240
Mr Kelly applied as homeless after having to leave the family home. He approached Birmingham who accepted an application. They accepted an application but sent him away before having made a written decision. They claimed that it was an administrative error that no written s184 decision was made.
Mr Mehari and his family applied as homeless after having handed back the keys to their rented flat. They were told to go away and return the next day. Birmingham did not mention temporary accommodation at that stage.
The court said:
“I am satisfied that, far from the errors in these cases being of individuals who went outside the Council’s practice and procedures, the relevant officers were following the practice and procedure they were encouraged to follow by the Council themselves. “
Refusal to accept a homelessness application at all from certain groups of applicants.
Khazai & Ors, R (on the application of) v Birmingham City Council [2010] EWHC 2576 (Admin)
An internal email from a manager inside Birmingham CC said:
“Dear All
Please note with immediate effect all single homeless who are presenting as homeless/roofless and Domestic Violence victims requiring refuge must be referred to the appropriate funded support service. We should not be completing a homeless application.
For single person under 25 they should be referred to St Basils ….
For vulnerable singles over 25 they should be referred to Midland Heart ….
Victim of Domestic Violence requiring a place of refuge should be referred to Trident ….
Victims of Domestic Violence who are able to stay at home but require support should be referred to Birmingham & Solihull Women’s Aid
More detailed guidance notes are being produced and will be distributed in advance of the briefing session next week Wednesday, but the above arrangements above already should be in place.
Monitoring of the arrangement is in place and if there are any problems with referring to the agencies, please advice (sic) myself or Saeed Akram.”
In accordance with this email Mr Khazai’s homelessness application was not processed. This was unlawful but the manager’s actions were not misfeasance in public office because:
“it was not of the nature of the bad faith and reckless indifference to the illegality of what he was putting forward necessary to found the tort of misfeasance in a public office”.
In the cases of two other applicants, Mirghani & Azizi, the applicants argued there was a policy of making s184 decisions the same day as the application to avoid s188 duties. Such a policy, it was accepted, would be unlawful. Both cases involved former asylum seekers granted leave to remain and therefore facing the discharge of NASS accommodation and support. They both applied to Birmingham as homeless.