Spencer v Taylor update – Supreme Court refuse leave to appeal

Well this is just a short note, and the title says it all. On 24th July the Supreme Court refused the tenant leave to appeal against the CA decision which accordingly stands. This is all about ending Assured Shorthold Tenancies, and is in fact good news for both landlords (as you’d expect) and tenants as well, as it clarifies the law no end, so everybody knows where they are.

I wrote about this at the time, but in summary the CA had put an end to all those irritating problems caused by the complicated provisions of s21 Housing Act 1988. This provides for two forms of notice – one in s21(1)  for use with a fixed term tenancy which just needs to be 2 months expiring after the tenancy has come to an end, and one in s21(4) that is for use in periodic tenancies and needs a date after which possession is to be given that is on the last day of a period of the periodic tenancy, and at least 2 months ahead. There is lots of scope for getting this wrong, as the period of the tenancy may be different to the date when rent is paid, and many landlords forget that a tenancy starting on 5th May ends on 4th June, not 5th June.

Lewison LJ pointed out that s21(1) notices can be given in all cases

on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy

so as virtually all periodic ASTs start as a fixed term, and then run on, a s21(1) notice can be used for them as well. And the cleverest bit is that he pointed out that a s21(4) notice, is a perfectly valid s21(1) notice, just one with added bells & whistles.

So landlords can throw away their s21(4) notices and use the simple s21(1) version in every case apart from the rare ones when the AST was always a periodic tenancy, or where the conversion to the periodic tenancy is contractual rather than the normal statutory one.

Of course you still have to make sure the notices etc about the deposit have been reserved following Superstrike (my piece here) but not for long, as remedial legislation is on its way – here’s the current position as at 22nd July. More of that when it arrives.

No doubt there will be more detail and analysis from the usual sources – Nearly Legal has promised an extended piece shortly. But good news all round.

 

PS – Nearly Legal’s extended piece is here.

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Excuse Me Sir, is this Your House?

This is a tale that shows what happens when legislation is passed in a hurry, without thinking things through, and the potential mess that can result. It also shows how judges can use common sense and legal ingenuity to remedy things, or at any rate limit the damage. These aspects have wider implications in these times of the restriction of Legal Aid and the Jackson changes to the Civil Procedure Rules that spawned the Mitchell case and all the procedural problems that have flowed from that. Perhaps I will expand on those on another occasion.

However, the story for today concerns Mr Best the builder, and the case is Best v Chief Land Registrar [2014] EWHC 1370 (Admin).  Mr Best was working on a property nearby in 1997 when he noticed 35 Church Road, Newbury Park, which was derelict and appeared to have been abandoned. The neighbours told him that the old lady who owned it had died and that her family don’t seem to be doing anything about it. So, no doubt with an eye on a potential profit, he secured it, repaired the roof, and over the years worked on the property when he had time, eventually moving in himself January 2012.

Now once upon a time there was a 12 year limitation period for land, and once you had occupied it for 12 years it was yours. But under the Land Registration Act 2002 there is now a two-stage process for registered land – you register an interest with HM Land Registry after 10 years adverse occupation, HMLR send formal notice to the registered owner, and if they don’t object you get registered as the owner, and their titles is extinguished. But if they do object then unless you can show estoppel, or other legal reasons, or it is a boundary dispute, then you will lose and they can evict you, and almost certainly will.

Now whether Mr Best wanted to recoup his investment, or wanted to live in the house that he had brought back from the dead I can’t say, as the report is silent on this point. However he asked HMLR to set the wheels in motion, and hit a snag. The Chief Land Registrar refused to send out the notice on the grounds that Mr Best had been committing a criminal offence by living in a residential property as a trespasser since s144 LASPO 2012 came into effect on 1st September 2012. The Registrar considered that you couldn’t acquire adverse possession for good public policy grounds, and besides the High Court had decided this in the case of R (Smith) v Land Registry [2009] EWHC 328.

Smith was about a man who claimed to have acquired a bit of a public highway from Cambridge CC by storing cars and other things on it for many years. HHJ Pelling QC, sitting in the High Court, said that he couldn’t, for three reasons:

  • it was a criminal offence under s137 Highways Act 1980 to obstruct the public highway and you couldn’t get rights by committing criminal offences as a matter of public policy;
  • there was a long series of cases to show that you couldn’t get adverse possession of a public highway except perhaps in really exceptional circumstances;and
  • if it was possible to get possessory title then it would be subject to the public rights of way anyway as you cannot extinguish them by adverse possession.

This decision was upheld by the CA mainly on the last two of these grounds.

Nothing daunted, Mr Best’s counsel argued that there was a world of difference between the Highways Act, backed up by a long history of the inalienability of highways, and s144 LASPO, which was a section tacked on to a totally different statute (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and which merely imposed a criminal liability on certain conduct, and didn’t set out to regulate the whole of the acquisition of title by adverse possession. Furthermore, even the paper owner of land couldn’t obstruct the highway that passed over it, or allow others to do so save by exercising powers under certain legislation for certain limited times and purposes. That did not mean however that all unlawful acts would prevent prescriptive rights being acquired.

Take the case of Bakewell Management v Brandwood [2004] UKHL 14. Here the HL dealt with the awkward problem that had built up following an earlier case of Hanning v Top Deck Travel. This held that as there was a prohibition in s 193 Law of Property Act 1925 to driving on a common without lawful authority it was impossible to acquire a right to do so by prescription, even by more than 20 years’ use. Freeholders took advantage of this by claiming large sums for vehicular access to large houses on commons all over the country. In Bakewell the HL held that prescription had no problem with people acting unlawfully ie tortiously. That is what it meant – doing things without a legal right for long enough. And as s193 allowed a landowner to grant authority, the mere fact that there was a criminal offence involved didn’t make that much difference. The landowner might have granted permission in a lost recent grant – the normal legal fiction for a prescriptive right being that the owner had granted the right recently but the document had been lost. This couldn’t happen with an obstruction of a public highway (as in Smith). And it showed that a mere criminal offence was not enough.

In Best’s case Ouseley J looked at the complicated and clearly fully-considered scheme for dealing with prescriptive rights dealt with by the LRA 2002 and contrasted it with the perfunctory and clearly bolt-on offence created by s144 LASPO 2012. He decided that s144 created a new offence to deal with a short-term problem of people squatting in residential premises, so as to enable the police to deal with them more easily, rather than alter the law relating to prescriptive rights as a whole.

[As a sideline, many lawyers protested about the pointlessness of the s144 legislation, covering as it does many actions  that are already offences under s7 Criminal Law Act 1977 and elsewhere and I covered this in a piece at the time.]

The 2012 offence only deals with squatters who enter as trespassers  on residential buildings and live there or intend to do so. It doesn’t cover gardens, sheds garages etc, or living in offices or factories, or occupying a residence but not living there – eg using as a workshop or concert venue. So it is very restricted. And it makes no distinction between people who have just entered and people who have been there for 30 years – any residential occupation after 1st September 2012 is an offence. It is a very blunt tool.

Ouseley J concludes after going through the authorities, and pointing out the the trespass remained a crime that could be the subject of prosecution if appropriate, in para 86

Parliament should be taken to have thought that the public policy advantages of adverse possession at common law meant that the mere fact that the adverse possession was based on criminal trespass did not and should not preclude a successful claim to adverse possession. Before any claim could arise in reliance on adverse possession, ten or twelve years of adverse possession would have had to pass without effective action by owner or by an enforcement authority, whether in civil or criminal proceedings. If that were the position, title could be extinguished or a change in owner registered (if the statutory processes were completed satisfactorily), without any public interest being engaged, unless particular circumstances meant that adverse possession should not of itself be a sufficient basis for an extinguishment of or transfer of title. Those circumstances are not where the trespass was a crime, but where the land in respect of which adverse possession was claimed was itself subject to rights which could not be extinguished, as with a highway, or was land of which a landowner/statutory undertaker could not be dispossessed because of the statutory provisions under which it held the land, in effect making the land inalienable or title inextinguishable, or creating preconditions for title transfer which were unmet by adverse possession alone. That would cover at least a number of situations in which trespass would be a criminal offence but it would not involve focussing on the fact of crime, rather it would involve focussing on whether extinguishment or transfer of title as a result of adverse possession was appropriate in the public interest in respect of that land.

He held that the Chief Land Registrar was wrong and that Mr Best did qualify for 10 years adverse possession and was entitled to invoke the procedure under Sch 6 LRA.

So Parliament has not abolished the concept of adverse possession to dwellings by accident, while leaving it in being for the gardens and garages, and for offices and factories. It remains as it always has, and s144 is just an offence that the police can invoke on trespassers if they want to do so. Anecdotal evidence is that they are no keener to use their powers under s144 than they were to use their similar powers under s7 Criminal Law Act 1977. But only because the Land Registry needed to know the position and was prepared to take the case to a High Court Judge to get a decision. And because Ouseley J worked his way carefully through things to get the right result, with the aid of Philip Rainey QC for Mr Best.

Whether Mr Best wins in the end is open to more doubt. There has been a lot of publicity as a result of the court case, and the house is apparently worth £375,000 or so. If the true owner comes forward his argument may all have been in vain. And I suspect that the fact that he has clarified the law for the rest of us will be very little comfort to him.

There is a fuller legal coverage of Best in the excellent Nearly Legal blog here.

PS I ought to also mention Jonathan Karas QC for the Registrar

 

UPDATE  – for news on an appeal to the CA in Best see here.

Spencer v Taylor – Good News for Landlords

Spencer v Taylor [2013]EWCA Civ 1600

This piece is a bit late, as the judgement was given before Christmas. But I’ve been busy, and there has been a lot of Mitchell-related nonsense going on.

We need to go back a bit. In the old days, before the new legislation there was very little private rented accommodation about, because the rents were controlled and it was virtually impossible to get tenants out even if they weren’t paying the rent. Then the new assured tenancies arrived and rent controls were relaxed, and it became possible to recover possession if there was a good reason, especially if the rent got seriously into arrears.

But landlords were still reluctant to commit themselves to possibly a lifetime of commitment, if their idea of a good reason differed from the judge’s. The mandatory orders under Ground 8 for tenants who were 2 months in arrears of rent were a start. However, what they wanted was the certainty of getting the property back if they wanted to. And this was where s 21 Housing Act 1988 came in. Because if a landlord served a s 21 notice and got the procedure right the Judge would have to make an order for possession in 14 days (or no later than 6  weeks if there would otherwise be serious hardship). There was no discretion.

And there was no fancy form of notice – they just had to give 2 months’ notice in writing.

Well, as you might imagine, landlords liked this, and the supply of properties to let increased rapidly. Perhaps I ought to say before you complain, that I realise that there were no doubt other reasons for this as well – the difficulties in getting a mortgage and the reductions in benefits and the economy generally for a start.

However, things are never simple. s 21 was drafted when ASTs were in their infancy and the draughtsmen didn’t realise that virtually all ASTs would run for 6 months as a fixed term, and then run on as periodic normally monthly tenancies thereafter. It would appear that they expected them to be either entirely fixed term, being brought to a prompt end at the end of the term, or to be periodic from the outset. And in the neat way that draughtsmen have they gave two forms of notice that had to be given – one for fixed terms and one for periodic terms.

The fixed term notice has given no difficulty. What is needed under s 21(1) is

  • a notice in writing signed by the landlord (or at least one of joint landlords)
  • requiring possession in not less than 2 months
  • expiring after the end of the fixed term

Hard to go wrong here, provided you can prove that the notice was actually given. The periodic notice however was much more complicated in practice. Under s 21(4) you needed

  • a notice in writing signed by the landlord (or at least one of joint landlords)
  • stating that after a date given possession is required under this section
  • the date must be at least 2 months after service
  • and must be the last day of a period of the tenancy
  • and must be no earlier than the earliest that the tenancy could have been brought to an end by a Notice to Quit if these were not invalidated by s 5(1). [in practice this wasn’t a problem as this was almost always less then 2 months].

The problem was getting the day right. A monthly tenancy starting on the 5th ends on the 4th of the next month and it’s the 4th that you have to give, or it’s invalid. Lots of scope for getting it wrong, and having to start again, even, sometimes,  if you had a saving clause. And as almost every AST was terminated when it was a periodic tenancy the established wisdom was that you had to use this form. So it mattered.

But no more. Lewison LJ in the Court of Appeal (who was an eminent landlord and tenant counsel in his day) decided to cut through the wreckage and simplify things. He noticed that s 21(1) applied

on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy

Now this tenancy had been a fixed term tenancy at the outset, in 2006, but had been periodic ever since the initial 6 months expired. The notice that had been served in 2011 was the s21(4) periodic one and it was arguable that the date selected was incorrect (the saving clause was not as clear as it should be). So the parties went to the CA presumably expecting to argue about the saving clause. And Lewison LJ decided that even if it was an invalid s 21 (4) notice it was a perfectly valid s 21(1) notice. It ticked all the boxes – it was signed, required possession in not less than 2 months, and it expired after the end of the fixed term. So all the arguments about s 21(4) just didn’t matter. And the famous 2003 CA decision of Fernandez v McDonald , which said that the correct date was vital, was strictly speaking irrelevant as the court only dealt with a s 21(4) notice.

For completeness I ought to say that Lewison LJ went on to find that the notice would have been valid under s 21(4) as well, but that is beside the point. Because NOBODY IS GOING TO USE s 21(4) NOTICES AGAIN.

You don’t need to. Unless your AST has NEVER been a fixed one, which is extremely unusual, and indeed this is another reason to avoid that arrangement, s 21(1) notices may be used in every case. Because the CA have said so in Spencer v Taylor. They are just so much easier. And although I will for one be unhappy to see s 21(4) go as it has been good to me in producing reasons to be given work by landlords, opportunities of earning fees in sorting out messes that landlords (and some non-specialist lawyers) have got into, and unexpected get-out-of-jail-free cards for my tenant clients, it must be for the best.

However, if you are a landlord, or acting for a landlord, do remember that before serving any sort of s 21 notice you have to be sure that any deposit has been properly protected, the appropriate notices etc served, and re-served as required by Superstrike v Rodrigues   (& see my further comments here) after the fixed period has expired. Or any s 21 notice is invalid and you’re in trouble.

IMPORTANT NOTE

I have just heard that the tenant has applied for permission to appeal to the Supreme Court, so things are still in the air. Anthony Gold are representing the landlord and have more info here. So until this is finally decided it is best to continue using the s 21(4) notice if the notice is served after the fixed term has expired (the “established wisdom” referred to above) just in case the SC don’t agree with Lewison LJ. Which will be a pity.

PS – Leave to appeal refused 24th July 2014. See my note. So the useful decision stands.

More Fuss about Squatters

As  you are no doubt aware, the new law against squatting, s144 of the remarkably comprehensive Legal Aid, Sentencing and Punishment of Offenders Act 2012, comes into force on 1st September 2012.

This is not completely unexpected. About a year ago the Government, following pressure from the new Conservative MP Michael Weatherley, promised in a sudden blaze of publicity to make squatting a criminal offence.  Some papers, such as the Daily Mail, got terribly excited about this. Other housing lawyers got equally excited, and wrote a letter signed by 160 of them (including me)  to The Guardian saying that the problem was already covered by lots of laws, and that if squatting was a problem, which they tended to doubt, then a new criminal law was not the answer. But to nobody’s surprise the Daily Mail point of view prevailed, and s144 was born.

I covered all this in a piece on Coventry View at the time  – The Fuss About Squatters  – and I won’t go over  all the old ground again. It will be enough to say that

  • The normal laws of criminal damage, theft, assault etc cover breaking in, stealing things, threatening violence and so on;
  • Occupying a home (or a potential home) and not leaving when requested is already an offence under s7 Criminal Law Act 1977 and the police have power to arrest and prosecute anybody who does not leave. This includes gardens, sheds and so on.
  • Occupying vacant property that is not a home allows the owners to go to a civil court and get an interim possession order. This takes a day or two and if the squatters don’t then leave they again commit an offence which the police can act upon.

There are also civil remedies

  • self-help – a residential owner can go in with his friends or security staff and throw them out;
  • squatters on land (not in buildings) can be removed by bailiffs without any court proceedings;
  • possession orders can be obtained in the civil courts and enforced by the High Court Enforcement Officers (formerly sheriffs) usually within a week or so. The police have to assist HCEOs on request.

The problem has always been that the police don’t like getting involved in this sort of thing. They are uncomfortable, and have many other things to do. So they say “it’s a civil matter” and tell the owners to go off to court, when there is very often no need to do so.

The New Law

Will the new law make any difference? Well, it makes it an offence if

  • a person is in a residential building having entered as a trespasser
  • they know or ought to know this
  • they are living in the building or intend to do so.

The new offence doesn’t apply to tenants holding over after the end of a lease or licence, even if they leave and re-enter the building.

Note that the offence only covers a “residential building” ie one that is designed or adapted before the time of entry, for living in. And a “building” includes all structures or parts of structures (including temporary or moveable structures).

In order to prevent a wild rush last week it makes no difference whether the entry was before or after the section came into force. And the police have been given express powers of entry and arrest to enforce the new law.

So the criminal law, and possible intervention of the police, has been extended to cover residential properties where there is nobody living in them (or allocated to live there – a displaced potential residential occupier), but not their gardens outhouses etc. It doesn’t cover commercial properties, or land as such.

Whether this will make any difference in practice will depend entirely on whether the police give the matter any priority over their other work. Given their attitude to the other offences mentioned above this looks unlikely. And the owners will have to fall back on the civil remedies that they retain.

A possible damp squib. Although the new political Police Commissioners may decide to use it as a way of making something of a mark. Who knows? We shall see.

Effective Possession Claims – the Landlord’s perspective

If you’re a residential landlord, or a lawyer working for one, then you need to be able to deal with the difficult tenants. Now most tenants are perfectly decent people – like my daughters. They pay the rent, don’t smash the place up, and only disturb the neighbours rarely. You don’t need legal advice on how to deal with people like that, you just need to have a clear agreement with the tenants and then keep your side of the bargain – respond to enquiries and complaints, fix things that go wrong, return calls and so on. It isn’t rocket science, and if you do this then most tenants will be no trouble at all. Even if they are a little late with the rent then a prompt call will usually produce payment without having to do anything more, before matters get out of hand.

Difficult tenants are difficult in different ways. To keep this piece a sensible size I will concentrate on Assured Shorthold Tenancies (ASTs) as they are the most common sort of tenancy in the private sector. Other types are Assured Tenancies (usually public sector, or created by mistake) and long leases and I will deal with these on another occasion.

The main causes of friction with landlords are

  • not paying rent
  • anti-social behaviour (ASB) of various sorts
  • and not moving out when the lease comes to an end

However, the landlord has two big guns in his cabinet – s21 Housing Act 1988 , and Ground 8 Housing Act 1988. There are others, but these two are mandatory grounds – if you get the paperwork right then the judge has to give possession in 14 days (or up to 6 weeks if exceptional hardship is proved).  So try and pick these if possible, unless you want to keep going back when the tenant fails to make the payments, or keep the noise down, as promised in court.

s21

This depends on serving a valid s21 notice. This has to:

  • be in the correct form
  • be at least 2 months
  • expire when or after the fixed term ends
  • if the fixed term has ended when the notice is served, expire at the end of a tenancy period at least 2 months ahead

The last of these is very tricky – a monthly tenancy starting on 4th ends on 3rd of the next month. And what if the rent is payable on Fridays but a weekly tenancy actually starts on the Monday? There have been CA cases this sort of thing. Good notices have a savings clause – use one.

You have to make sure the tenants’ deposit is properly protected or you can’t use s21 and it is a good idea to avoid a counter-claim by sorting out any outstanding repair work before starting proceedings. And do make sure you can prove the notice has been served – if possible give it to the tenant and get a receipt – don’t just send it by post as any half-awake tenant will deny getting it and your claim will fail.

Having done this you have a choice – the accelerated court procedure where the paperwork is looked at by a District Judge without a hearing, or the normal possession procedure where you have to go to court. There are advantages both ways – if the paperwork is perfect then the accelerated version saves the cost of a hearing. However you can’t include a claim for any arrears of rent, the cost of a hearing is small given the number of agents now available, a hearing gives you a chance to clear up any doubts the DJ has, and at least locally, the accelerated procedure is no quicker, once you wait for the court to process things. You pays your money….

So a powerful weapon if you get the procedure right.  It is often worth going down this route even if you have other possible grounds, like  ASB, or a history of rent arrears, because if you get it right you will win.

Ground 8

This covers rent arrears – fairly serious arrears running to at least 8 weeks (weekly rent) or 2 months (monthly rent). You serve a prescribed notice (and prove you served it) and then if the rent is still 8 weeks/2 months in arrears 14 days after service you can start possession proceedings. If there is still at least 8 weeks/2 months  due when the hearing takes place you hit the jackpot and are entitled to a mandatory 14 day (or up to 42 day) possession order. And this still applies even if some of the original rent has been cleared and more has then been run up while you are waiting for the date.

There are advantages to this – you only have to wait 2 weeks rather than 2 months, and you can use the cheaper court fees of Possession Claims on Line (PCOL) – £100 against £175. But the downside is that if the arrears are reduced to less than the 2 months figure you are left with a discretionary ground 10 claim, which will usually lead to a suspended order at most. Always include grounds 10 (rent arrears) and ground 11 (irregular payment of rent) in the notice or you will be stymied by this. And of course if you really want the tenant out they can always stop you by paying the rent off in full. Which might be regarded as unfair.

Which to choose?

  • If you want possession, come what may, then it’s s21 every time. It may take longer and you may lose arrears of rent but it gets there in the end every time.
  • If you want the rent use Ground 8. It is very difficult getting rent out of former tenants after they have left. While they are there there is every incentive to try and clear or at least reduce the arrears, especially if they are getting Housing Benefit. They don’t want the hassle of moving out and finding another place and this is worth avoiding if they can. And tenants recognise that if they don’t pay the rent they will have to go.

And if you are a tenant?

Mr Loophole the speeding lawyer apparently reads police  manuals to show him what ought to happen. Tenants and their advisers will know that lots of landlords get things wrong. And many DJs are uncomfortable dealing with mandatory orders and do their best to find difficulties that wouldn’t have troubled them if they were exercising a discretion. So they are often on your side.

Pinnock & Beyond! – a note from the Past

Since the Court of Appeal decision in Weaver v London & Quadrant (2009) which decided that most social landlords were public bodies for the purpose of Human Rights law, especially when it came to Article 8 (the right to a home) it has been clear that there were going to have to be changes in how all the mandatory grounds of possession – those that didn’t depend on the discretion of a judge – were handled, in order to avoid challenges on public law grounds. It was argued that if a judge didn’t make the final decision because his hands were tied by the legislation the landlord’s decision to issue the proceedings could be challenged as a breach of (usually) article 8.

The standard required for the landlords, however, are not too rigorous – you just have to have a fair procedure and not make unreasonable decisions.   But what is “unreasonable” and in particular does it incorporate the Human Rights concept of “proportionality”? It might be reasonable to try and recover possession of your house if the tenant is in arrears of the rent, but is it proportionate if he is only a few pounds over the 2 month limit for Ground 8 HA claims and he’s lived there for 20 years?

Up until now this has been a distant threat anyway as these sort of challenges have had to be made by way of Judicial Review applications in the Administrative Court, and  few tenants can afford to do that. The worst that might happen in the County Court possession case was that if such an application was made the court might adjourn the hearing pending the result of an application for permission for JR, which was rarely granted.

Well, things are set to change. The Supreme Court decided on 3rd November in Manchester CC v Pinnock [2010] UKSC 45 that in a claim over a demoted tenancy the County Court had jurisdiction to decide the proportionality point – was the decision to go for possession disproportionate, bearing in mind the landlord’s other duties and requirements? This should be decided summarily and the objection dismissed unless it clearly had merit. If it had then this might mean that a claim which was otherwise irresistible resulted in an extended period before possession, or a suspended order, or even the claim being dismissed.

Does this matter? There are very few claims involving demoted tenancies. The Supreme Court declined to give general guidance, pointing out that it would shortly hear Salford v Mullens covering introductory tenants and homelessness non-secure tenants and others and that would be a better case to use for guidance. The case was due to be heard on 23/24 November but the decision may be some time off, and the final details must wait until then.

However, there is some clear guidance that can be given at this stage to avoid potential problems in the future. And it is all good practice in any event:

  • The claims most at risk in the social housing area are
    • Ground 8 HA 88 (2 months rent arrears)
    • S 21 HA 88 (ending ASTs – used for intermediate and introductory tenancies)
    • Notices to quit or forfeiture brought by fully mutual housing associations, where there is no security of tenure
    • Homelessness licences, demoted tenancies
    • Claims against trespassers.
  • In each case the landlord should
    • Gather information about the facts – how much rent is in arrears, and why? What does the tenant do? Have they any children? Are there disabilities etc? And record this.
    • A manager should decide how to proceed and set down the reasons for their decision in writing.
    • If circumstances change significantly a manager should review the decision and again record their decision and reasons in writing.
  • It may help to have written guidance but ultimately somebody must be allowed to look at the bigger picture and make a decision which they feel they can justify. This must include being proportionate, and taking into account the effect that the decision will have on the tenant as well as the extent of the fault – the amount of the arrears, the degree of disturbance or whatever.
  • Some cases are easy – a Ground 8 claim against a shared ownership tenant with a mortgagee is virtually always justified, as the mortgagee will pay up and the tenant’s home is not seriously at risk. And there are very few times when it is unreasonable to remove squatters. Here the paperwork can be pretty simple.
  • But other cases need proper detailed recording if you are to avoid the risk of having the claim upset, or seriously delayed, by a successful challenge in the County Court. And it may be easier in some cases to proceed under a discretionary ground (eg Ground 10) when it is the Judge who has to make the decision.

There are likely to be some changes in court procedure to take this into account and maybe more guidance, which we will pass on as soon as possible.

And those in the know suspect that something similar may spread into the private landlord field, as Human Rights make little distinction when it comes to such basic things as having a home.

[Post prepared 23.11.10]

Pinnock on Steroids

Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8

The Supreme Court has heard three more claims in relation to various types of possession claims where the tenants are not secure and has decided that the Article 8 ECHR right to a home means that the court has a power to consider a proportionality defence to a possession claim. This means that all social landlords will have to revise their procedure for bringing possession claims and expect a far higher level of scrutiny from the courts.

The cases involved introductory tenancies under part V of the Housing Act 1996 or homelessness licences under part VII. This follows on from Manchester v Pinnock (2010) which related to demoted tenancies. The details do not matter in themselves: what is important is that it now seems almost certain that all possession claims by public bodies (which following Weaver v L & Q include most social landlords) are going to be covered, including Ground 8 claims (8 weeks arrears of rent).

In the future it appears that possession claims are going to divide into two groups:

  • Discretionary claims – eg Ground 10 arrears of rent  – where the court has to be satisfied that it is reasonable to make an order. The court has a discretion, and makes the decision. These cases are not affected, as the court already decides, as a matter of course, on the proportionality of an order.
  • Mandatory claims, where the court has no discretion on making the order, provided that the Landlord has followed the correct procedure. This includes the mandatory grounds 1-8 of Housing Act 1996, s21 claims for possession of assured shortholds, and claims for possession of demoted tenancies, introductory tenancies, homelessness licences, and other similar claims, including the new mandatory grounds at the end of the fixed term tenancies being proposed by the government.

In Mandatory claims the court will be able to decide whether making an order is proportionate, and if it is not can decline to do so, even if there are no other grounds to refuse.

The procedure is meant to be:

  1. The court only considers proportionality if it is raised by the Defence;
  2. The court must consider that the issue is seriously arguable;
  3. The court then decides if making an order for possession is a proportionate means of achieving a legitimate aim – eg to vindicate the Landlord’s property rights, or enable the landlord to allocate and manage its housing stock.
  4. Any decision must set out a reasoned judgement on how a fair balance is being struck.

However, we have considerable doubts on how this will operate in practice, in a busy housing list before a harassed District Judge or Deputy. Already anecdotal evidence seems to indicate that some Defence lawyers raise proportionality in every case, and ask for an adjournment so they can plead it, while Judges frequently raise these points themselves, and seem to consider that this is the same test as Discretionary claims, which it is not.

Perhaps there will be further guidance, or alterations to the rules to try and sort things out. However, until things sort themselves out the clear guidance must be to treat all possession claims as discretionary and prepare the evidence accordingly. Why is it proportionate or reasonable to make an order? And consider whether it might be better to bring the claim under one of the truly discretionary grounds – such as Ground 10 rather than Ground 8, and sidestep the problem.