Housing Law Bulletin - Issue 266 – 6 June 2012

Wednesday 6 June 2012

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***STOP PRESS. The closing date for applications from barristers wishing to join the Housing Team at Garden Court is Thursday 7 June 2012 at 4.00pm. The Team seeks to recruit barristers with significant experience in housing law to meet the existing demands of our work and contribute to the expansion of our team. Applications are invited from practitioners of at least 5 years call or equivalent experience. For more details, click here. ***

The Latest Housing Law News

Accommodating the homeless: the UK Government will bring into force the provisions of the Localism Act 2011, that enable housing authorities to choose to complete the main homelessness duty by making an offer of private rented sector accommodation, later this year. On 31 May 2012 it announced the launch of a consultation exercise on the terms of a new set of regulations laying down minimum standards before private sector tenancies can be used in this way. For the announcement, click here. The consultation will run until 26 July 2012. For a copy of the consultation paper, click here. An alternative option, of requiring councils to only use accredited landlords, is being rejected for the reasons set out in an impact assessment. For a copy of that, click here.

Unlawful use of B&B for the homeless: in a Parliamentary Written Answer given on 23 May 2012 the Housing Minister revealed that the number of homeless families in England placed in B&B temporary accommodation for more than six weeks had risen from 150 at the end of 2010 to 450 at the end of 2011. He has written to the 20 authorities responsible for more than 80% of these placements "reiterating the Government's position that this practice is unacceptable, urging them to prioritise elimination of the use of long term bed and breakfast accommodation for families, and offering support from my Department." For the full text of the Answer, click here. For the full table identifying the particular councils involved, click here.

Discharging the homeless from hospital: a new report released in May 2012 indicates that more than 70% of homeless people are being discharged from hospital back onto the streets, damaging their health and costing the NHS more money. For a copy of Improving Hospital Admission and Discharge for People who are Homeless, click here.

Empty Homes: on 29 May 2012 the UK Government announced the first 20 successful bids by local authorities for the Clusters of Empty Homes Fund. The total pot is £60m. For the list of successful councils, click here. For the announcement and for details of other measures on tackling empty homes, click here.

Accommodation for Gypsy & Traveller families: on 31 May 2012 the UK Government published the results of the January 2012 count of gypsy and traveller caravans in England and the numbers of travelling showpeople. For the full statistics, click here.

Disposal of social housing: recently, the UK Government relaxed the restrictions on councils disposing of parts of their housing stock. Following suit, the Homes & Communities Agency has released a new version (May 2012) of its guidance Disposing of Land explaining the circumstances in which it, as social housing regulator, will consent to other social landlords disposing of their stock. For a copy of that guidance, click here.

Community Right to Build: on 29 May 2012 the UK Government announced that £17m was available to be used towards the costs of preparing a submissions for Community Right to Build orders - a new route for obtaining planning permission for community-led development schemes which could include provision of housing for sale or rent. For the announcement, click here. For more details of the Community Right to Build, click here. http://www.homesandcommunities.co.uk/community-right-to-build The organisation "Locality" is able to give help and advice to groups interested in pursuing the new rights. For its details, click here.

The Latest Housing Case Law

Fitzhugh v Fitzhugh [2012] EWCA Civ 694
1 June 2012

The claimant and the defendant had jointly granted a licence over certain land to a third party and the defendant jointly. The licence fee was not paid and the claimant (acting alone) gave written notice to terminate the licence. The claimant then sought an order for possession. The Court of Appeal asked and answered this question: If A and B (described as 'the Licensor') grant a licence to occupy land to B and C (described as 'the Licensee'), and the licence automatically terminates upon the failure of B and C to remedy any remediable breaches within the time specified by a notice given by 'the Licensor' to 'the Licensee', can such a notice validly be given by A alone? It held that only A and B acting together could give notice to B and C. As the notice had been given by the claimant alone, it was invalid and the licence had not ended.

Patel v MRD Property Developments Ltd [2012] EWCA Civ 727
31 May 2012

Under the terms of their lease, three joint tenants were obliged to pay, in addition to their rent, an "insurance rent" equal to the sum paid by their landlord to insure the premises. The sum would only become payable upon written demand. Each year, the landlord's agent sent to one of the joint tenants a copy of the insurer's renewal notice showing the premium payable by the landlord. The tenants paid the amount claimed but later took the point that they had not received a "written demand" each year. The Court of Appeal held that, in the circumstances, the presentation of the renewal notice was sufficient written demand. It refused permission for the tenants to argue that service on just one tenant had been insufficient because the point had not been taken at trial. For the judgment, click here.

Amicus Horizon v Thorley [2012] EWCA Civ noted on LAWTEL
30 May 2012

The claimant housing association obtained an interim anti-social behaviour injunction (ASBI) with a power of arrest, pending the trial of its claim against the defendant tenant for possession for anti-social behaviour. There were two instances of breach of the injunction. The defendant was arrested but the committal application was adjourned and the defendant was released on bail. There were then two further breaches of the injunction. The committal applications were tried with the possession claim. The judge made a possession order and imposed sentences of immediate imprisonment for the breaches totaling four months. The Court of Appeal reduced the total sentence to six weeks' imprisonment. The original sentence had been excessive as the breaches were not of the most serious kind and the penalty was beyond the parameters suggested in respect of similar conduct by the Sentencing Guidelines Council's guidance on penalties for breach of ASBOs.

Hermann v Withers LLP [2012] EWHC 1492 (Ch)
30 May 2012

The claimants bought an expensive house in London. The defendants were the solicitors acting for them in the purchase. Before the sale was completed, an issue was raised about whether the claimants would, as house-owners, obtain the right to access a nearby communal garden. After completion, and after litigation between the claimants and the gardens' committee, it was resolved that the house carried no right to use of the garden. The claimants sued the defendants for damages for negligence. The High Court allowed the claim. It held that there had been negligence in the solicitors taking an over-confident view of the interpretation of a relevant statutory provision and in failing to enter a caveat that a court might take a different view. The defendants were ordered to pay significant damages, interest and costs. For the judgment, click here.

Amicus Horizon v Brand [2012] EWCA Civ, [2012] All ER (D) 252 (May) and noted on LAWTEL
30 May 2012

An assured tenant of the claimant housing association died. The defendant remained in occupation and claimed that he had lived with the deceased as if he was her husband and that, accordingly, he had succeeded to the tenancy under Housing Act 1988 section 17. The association did not accept that and sought possession. The judge made a possession order. Although the defendant had stayed at the deceased's home about three nights each week he had spent the rest of the week at his mother's home. He used the mother's address when giving his address to the police and when opening a bank account. He, and the deceased, had separately claimed welfare benefits. The judge was satisfied that this degree of separateness was a demonstration of the deceased's unwillingness to fully commit to a relationship with the defendant. The Court of Appeal dismissed an appeal. The judge had correctly weighed up all the circumstances and had reached a decision that could not be impeached.

Bjedov v Croatia [2012] ECHR 886
29 May 2012

The applicant and her husband had been joint tenants of a council flat in Zadar in which they had lived since 1975. In August 1991 the couple were temporarily staying elsewhere when they heard that someone had broken into and occupied their flat. The husband was taken ill and the couple stayed where they were until the husband died in 1994. The applicant did not return to the flat until 2001 when she heard that it had become empty again and she moved back into it. In 2006 the council obtained a possession order on the basis that the tenancy of the flat had been lost, under the applicable legislation, by an absence in excess of 6 months. With enforcement of that order pending, the applicant applied to the European Court of Human Rights asserting a breach of Article 8. The Court held that: (1) the flat was the applicants 'home'; (2) an eviction order, even though not yet enforced, amounted to an interference with the right to respect for that home; (3) the interference was in accordance with the law and pursued the legitimate aim of ensuring unoccupied flats could be repossessed for those more in need of them; but (4) on the question of whether an eviction was 'necessary', the domestic court had only considered whether there had been a good reason for the temporary absence. It should have looked at all the circumstances to determine whether it was reasonable and proportionate to now evict. That failure could not be made good by taking account of personal circumstances at the enforcement stage. They had to be considered by the domestic court when making the possession order and it had not been. For the judgment, click here. Armed with the Court's judgment the applicant could apply to re-open the proceedings in the domestic courts. She was also awarded 2000 euros for non-pecuniary damages, costs and interest.

Winstone v Great Gate Management Co Ltd [2012] EWCA Civ noted on LAWTEL
24 May 2012

The claimant was the tenant of a flat. The defendant landlord proposed to carry out repair works and recover the costs by way of service charges. The claimant considered that the proposed works were more extensive and more expensive than reasonably required and obtained a without notice injunction to prohibit the carrying out of any structural work. At the on-notice hearing to renew the interim injunction, a judge discharged it on the basis that the issue was really about the cost of the works and that if the tenant could later show that the works were too expensive she could be compensated by damages. The claimant was ordered to pay costs of over £7000. She appealed. The Court of Appeal dismissed the appeal against that order. The claimant had failed to obtain renewal of the injunction and her liability for costs flowed from that.

Maloney v Filtons Ltd [2012] EWHC 1395 (Ch)
24 May 2012

The claimants were receivers appointed by a bank to take over the collection of rents and other income from a block of flats which had been given as security for a loan facility. The defendants claimed to have a two year lease of the block expiring in December 2012 and binding on the bank. The claimants said that the lease was either void or a sham. The High Court held that the lease was a sham and, if not a sham, was void. The defendants counterclaimed for a declaration that, in the alternative, they were managing agents entitled to let and manage the flats, collect the rents and retain commission for doing so. The High Court was satisfied that there was in truth a relationship of landlord and managing agent that was binding on the bank. However, in all the circumstances it would be wrong to grant specific performance to continue rather than end that relationship. Not least, knowing of the appointment of the receivers, the defendants had wrongly continued to pay the collected rent over to the landlords. Against that background, the relationship of manager and agent should be treated as determined. For a copy of the judgment, click here.

Birmingham CC v Lloyd [2012] EWCA Civ noted on LAWTEL
23 May 2012

The claimant council sought an order for possession against the defendant. When that order was refused, it appealed to the Court of Appeal. The defendant attended at the appeal hearing unrepresented and explained that his legal aid had been withdrawn on account of a change in his means. He applied for an adjournment, explaining that he was awaiting the outcome of a reconsideration of his means by the Legal Services Commission. The council opposed the adjournment on the grounds that it would produce an even longer delay in recovering possession and in re-letting the property. The Court of Appeal held that the greater prejudice would fall on the defendant if the proceedings were not delayed and granted a short adjournment with a direction that the appeal be relisted for July 2012 and that it would then proceed whether or not the defendant was represented.

Garcia v Choudhury [2012] EWCA Civ 731
10 May 2012

The parties were the tenant and landlord of a flat. The tenant claimed that the landlord had not protected the deposit under a statutory scheme and brought proceedings. A district judge held that the statutory scheme did not apply because the tenancy was not an assured shorthold tenancy. That was because the flat in which the tenant lived and the house in which the landlord lived were all part of the same 'building' and that accordingly the 'resident landlord' exception applied. The landlord then served a notice to quit and sought possession. The district judge rejected the defence that the notice to quit was invalid and made a possession order. The tenant appealed both decisions to a circuit judge. The appeals were dismissed. The Court of Appeal refused permission to bring a second appeal. The decision about whether the properties were part of the same building turned on issues of fact which raised no point of principle required to justify a second appeal. The judges had been entitled to find that although the notice to quit was not entirely clear it had sufficiently identified the date on which the tenancy would end.

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] May Legal Action p29
For back issues of articles in this series, click here.

A room of one's own
(commentary on Burnip v Birmingham CC)
G. Peaker
[2012] 1 June Inside Housing p22
To read the article, click here.

When to apply for a debt relief order
A. Samuels
[2012] 153 Solicitors Journal Issue 21 p14

C. Grose and H. Tucker
[2012] Guardian Housing Network 31 May 2012
To read the article, click here.

Housing Law Events (Summer 2012)

13 June 2012
Homeless Cases: Has the Duty been Discharged?
An evening housing seminar from HLPA
For more details, click here.

21 June 2012
Housing Law: The Legal Update
A Northern Housing Consortium training event in York
For the details, click here.

27 June 2012
Social Housing Tenancy Agreements
A Lime Legal training event in London
For the details, click here.

28 June 2012
Anti-Social Behaviour
A SHLA evening seminar in London
For the details, click here.

29 June 2012
Homelessness: Law & Practice
A Lime Legal training event in London
For the details, click here.

18 July 2012
Outside the Housing Acts: No recourse and Community Care
An evening meeting in London of HLPA
For the details, click here.


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