Dean Underwood Barrister Hardwicke Building, New Square, Lincolns - - PowerPoint PPT Presentation

Plaster, possession and proportionality

A housing case law up-date Dean Underwood

Barrister

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Topics covered

• Key cases in housing law : 2011-2012
• Implied repair covenants: responsibility for plasterwork
• Loss of security: ‘only or principal home’?
• Succession and survivorship: statutory -v- common law rights
• Statutory, periodic assured shorthold tenancies: when do they start?
• Tenancy deposit penalties: limits on the court’s powers
• Human rights defences to possession claims
• Ending joint tenancies: the rule in Hammersmith LBC v Monk
• Appeals against possession orders made on grounds of ASB
• Sentencing for contempt: guidelines for breach of ASBIs

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Grand v Gill

[2011] 1 WLR 2253; [2011] HLR 37

• Plaster applied to walls and ceilings
• Section 11, Landlord and Tenant Act 1985
• Covenant to ‘keep in repair the structure and exterior…’
• Irvine’s Estate v Moran (1992) 24 HLR 1 overruled
• Not a decorative finish: part of the structure
• Landlord responsible for repair of defective plaster

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Islington LBC v Boyle

[2012] HLR 18

• Security of tenure
• Section 81, Housing Act 1985; see also section 1, Housing Act 1988
• ‘only or principal home’: a principled approach
• issue of fact, determined in light of all available evidence
• rebuttable presumption that security lost
• subjective intention to return not sufficient: need for objective corroboration
• focus on enduring intention, not ‘fleeting changes of mind’
• Permission to appeal to Supreme Court refused

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Solihull MBC v Hickin

[2012] 1 WLR 2295

• Secure tenancy granted jointly to Mr and Mrs H
• Mr H left; Mrs H died leaving daughter, E, in occupation
• S served notice to quit on Mr H
• E defended possession claim on the basis that
• she had a right to succeed her mother as tenant - section 89, Housing Act 1985
• that right displaced Mr H’s common law right to the tenancy by survivorship
• Supreme Court disagreed:
• Mr H had become sole tenant by operation of the common law of survivorship
• Mr H no longer occupied the property as his only or principal home
• The notice served on him was therefore effective to end his tenancy

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Lappin v Surace

Romford County Court, 13.06.12

• Assured shorthold tenancy
• End of fixed term
• Section 5, Housing Act 1988
• Statutory, periodic assured shorthold tenancy
• Calculating the correct start and end of the period
• Notice under section 21, Housing Act 1988

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Gladehurst Properties Ltd v Hashemi

[2011] HLR 36

• Protection of tenancy deposits
• Requirements of sections 212-215 Housing Act 2004
• Landlord’s failure to comply
• Court’s power to award damages for 3 x value of deposit
• Power coterminous with tenancy
• Section 214 amended by Localism Act 2011, section 184

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Corby BC v Scott - West Kent HA v Haycraft

[2012] HLR 23

• Introductory and ‘starter’ tenancies
• Complaints: rent arrears and anti-social behaviour
• Possession claims met with human rights defence: Article 8
• Application of:
• Manchester CC v Pinnock [2010] 3 WLR 1441
• Hounslow LBC v Powell [2011] 2 AC 186
• Confirmation of:
• high threshold for seriously arguable defence
• importance of summary dismissal of below-threshold defences

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Riverside Group Ltd v Thomas

[2012] EWHC169 (QB)

• Starter tenancy granted to vulnerable tenant
• Complaints of anti-social behaviour
• Possession claim met with human rights defence: Article 8
• Application of Pinnock and Powell
• Confirmation:
• f high threshold for seriously arguable defence
• f important policy reasons for use of starter tenancies and quick termination
• that section 89, Housing Act 1980 not incompatible with Article 8

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Birmingham CC v Lloyd

[2012] 2 P&CR DG18

• L moved into brother’s flat when brother died
• L then ended his own tenancy of other accommodation
• B’s possession claim met with human rights defence: Article 8
• Court of Appeal allowed appeal against refusal of possession
• L was a trespasser and always had been
• Effect of refusal had been to usurp B’s role in allocating housing
• Pinnock, Powell and Corby applied

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Sims v Dacorum BC

[2012] EWCA Civ …

• Joint tenancies
• Termination by notice to quit served by one tenant only
• Common law rule in Hammersmith LBC v Monk [1992] 1 AC 478
• Whether rule compatible with Article 8 and Article 1, Protocol 1
• Proposed development of common law:
• Treat NTQ as a release of one tenant’s interest to the other?
• Treat service of the notice as the ‘function’ of a trustee?
• Judgment reserved: watch this space

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Friendship C.H.A. v Begum

[2011] EWCA Civ 1807

• Assured tenancy: couple with 7 children
• Conviction for intent to supply drugs leading to possession claim
• Appeal against outright possession order
• Sandwell MBC v Hensley [2008] HLR 22 applied
• No point suspending when inevitable outcome would be breach
• Must be cogent evidence that past conduct will cease
• Court entitled to assume that local authority would comply with duties owed

to children

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Amicus Horizon Ltd v Thorley

[2012] EWCA Civ 817

• Anti-social behaviour injunction
• Section 153A, Housing Act 1996
• Breach of injunction
• Committal for contempt
• Appropriateness of immediate custodial sentence
• Sentencing Guidelines Council: Definitive Guideline for breach of ASBO

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk

Plaster, possession and proportionality

A housing case law up-date

Dean Underwood

Barrister

Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk