Section: Security of Tenure

Case Law Update

Wandsworth LBC v Whibley [2008] EWCA Civ 1259

Wandsworth Council obtained a Possession Order on grounds of rent arrears and nuisance against a secure tenant. The Order was postponed on terms.

The Council considered that there had been a breach of the terms and applied to the court to fix a date for possession. In support of the application it submitted a witness statement from a council officer, detailing complaints she had received from neighbours since the Possession Order had been made.

The judge considering the application directed a short hearing at which, if the application was opposed, directions would be given for the allegations to be tried. The application was opposed and a one-day hearing was scheduled to deal with it.

The Council appealed, asserting that the application to fix the date of possession should be dealt with summarily on paper only, save in the most exceptional circumstances.

The Court of Appeal dismissed the appeal, stating that "it is not permissible for a tenant who has a possible tenable answer to lose his or her home unheard".

Allen v London Borough of Southwark [2008] EWCA Civ, [2008] All ER (D) 113 (Nov)

Mr Allen, a secure tenant, wished to continue paying his rent at his local housing office. Soutwark council wanted him to switch to paying through the post office.

Over a number of years, the Council issued five sets of possession proceedings for rent arrears, all of which were either withdrawn or dismissed.

Mr Allen then brought a claim that the Council's repeated issue of proceedings, without merit, against him amounted to harassment. A judge struck out his claim.

The Court of Appeal re-instated the claim, on the grounds that - a reasonable person might well think that the repeated issue of proceedings could constitute harassment. Therefore, the claim would have to be tried.

Wandsworth LBC v Webb [2008] EWCA Civ. [2008] All ER (D) 111 (Nov)

Wandsworth Council claimed possession from Ms Webb, a secure tenant, on grounds that her teenage son had used her home as a base for his antisocial activities in the area. It obtained an ASBO against the son.

Prosecutions brought on the basis that the son had committed three offences since the making of the ASBO ended in his acquittal.

At trial of the possession claim, the judge took into account the matters that had formed the basis of those three charges and decided that it was reasonable to order possession. The Court of Appeal set aside the Order, ruling that the judge ought not to have taken the three matters into account, as they established nothing more than that the son might have breached the ASBO.

Knowsley Housing Trust v White [2008] UKHL 70

The House of Lords unanimously decided that, where a Possession Order is granted (whether outright or suspended) against an assured tenant of a housing association or private landlord, the tenancy does not end until the tenant is actually evicted by the bailiff or the tenant voluntarily leaves.

The effect of this ruling is that there are no "tolerated trespassers" in the assured tenancy sector.

Porter v Shepherds Bush Housing Association [2008] UKHL 70

Mr Porter had been a secure tenant. He had failed to comply with the terms of a Suspended Possession Order but remained in occupation as a secure tenant.

Mr Porter eventually paid-off all the arrears and costs. The Order said that - "When you have paid the total amounts mentioned, the plaintiff will not be able to take any steps to evict you as a result of this Order."

The House of Lords held that, notwithstanding his earlier breach of the Order and the wording used, he was entitled to apply to the county court to revive his former tenancy.

To the extent that the cases of Swindon BC v Aston and Bradford MBC v Marshall had held otherwise, -they had been wrongly decided.

St Pancras & Humanist HA v Leonard [2008] EWCA Civ 1442

St Pancras & Humanist Housing Association issued a claim for possession of a garage occupied by one of its tenants. The tenant said that he had acquired title to the garage by 12 years adverse possession.

The judge decided that he was estopped from raising that defence, as he had represented at tenants' meetings that the garage was for communal use by all tenants.

The Court of Appeal dismissed an appeal. The conclusion had been available to the judge on the facts found.

Dixon v Wandsworth LBC [2009] EWHC (Admin) 27

Mr Dixon and his sister were joint secure tenants. She ended the tenancy by Notice to Quit and left. Wandsworth Council obtained a Possession Order.

Mr Dixon applied to set aside the Possession Order, or prevent execution of it, on the basis that the law enabling one joint tenant to unilaterally destroy a joint tenancy was inconsistent with Human Rights Act 1998 Schedule 1 Article 8 (right to respect for a home) and that his eviction would be disproportionate.

The High Court rejected the application. The common law was not incompatible with Article 8 and the Council had reached the decision to evict in a way that was reasonable and proportionate.

Cosic v Croatia

Ms Cosic was a teacher. The school at which she taught provided her with a flat. The school's lease of the flat later expired and the Government became the owner of the flat. Ms Cosic then paid the Government a monthly rent.

Nine years later, the Government claimed possession. Ms Cosic had no security of tenure, nor any other right to remain under domestic law, and a court made a Possession Order.

She applied to the European Court of Human Rights complaining that the eviction infringed her right to respect for her home (Article 8).

The Court unanimously upheld her claim. The domestic court that had granted possession had not considered Ms Cosic's particular circumstances and had not examined the proportionality of her eviction. She was awarded compensation and costs.

Section: Security of Tenure

Case Law Update

Legal Update

Reporting on Nov 2008-Jan 2009

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