Court of Appeal allows appeal on important point of law in housing succession case

Wednesday 24 July 2019

Mr Yildiz was represented by Edward Fitzpatrick (at the appeal hearing) and Tim Baldwin (prior to the appeal hearing) leading Stephen Marsh, all of Garden Court, who were instructed by Farzana Chowdhury of Hodge Jones and Allen Solicitors in a second appeal.

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The case of London Borough of Hackney v Yavus Yildiz concerns the interaction between Ground 15A of Schedule 2 of the Housing Act 1985 and Section 83 in a case concerning a succession to a secure tenancy.

Ground 15A is a ground of possession which applies when someone has succeeded to a tenancy following the death of a family member. If the landlord is of the view that the property to which they have succeeded is more extensive than is reasonably required by the tenant, section 15A provides a mechanism for them to seek possession of the property if the court finds that it is reasonable for possession to be ordered.

The ground sets out a time limit during which possession must be sought. The tenant must be given notice of seeking possession and proceedings must be commenced more than six months and less than twelve months after the notice has been served. In the alternative, they can decide to proceed to seeking possession without service of a notice. In those circumstances, the landlord must bring proceedings more than six months but less than twelve months after they became aware of the previous tenant’s death.

Section 83 provides that a court can dispense with the requirement for the service of a notice of seeking possession if they find that it is ‘just and equitable’ to do so. The question before the court was whether, if a court decides it is just and equitable to dispense with the need to serve a notice of seeking possession, this has the effect of also dispensing with the requirement to bring the proceedings within the alternative time limit of not less than six months and not more than twelve months after the landlord became aware of the previous tenant’s death.

In a first appeal heard in the County Court in Central London it was held that it did have this effect. This was challenged by the Defendant. There was no binding authority on how the court should approach the question of how these sections of primary legislation interact and it required close scrutiny by the Court of Appeal as the arguments made by both sides in the case are complex in law. This is of clear importance as to how the right of succession to a secure tenancy will operate and how a local authority may secure possession if the succession to the tenancy results in under occupation.

The Court of Appeal allowed the appeal and struck out Hackney’s claim for possession and held on 24 July 2019 that a court does not have jurisdiction to dispense with the requirement to serve a notice if a notice is invalid because proceedings were commenced outside of the 12 months specified in the notice in a case concerning ground 15A. This is an important judgment because it gives certainty to people who have succeeded to a tenancy that, if the timescale for seeking possession provided for by Parliament has passed, there is no risk that they will be evicted from their home. This judgment gives clarity as to the operation and policy informing the law of succession for secure social tenancies and Parliament’s intent in passing and amending legislation.

A transcript of the judgment can be found here.

Edward Fitzpatrick, Tim Baldwin and Stephen Marsh are members of the Garden Court Chambers Housing Team.

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