Housing Law Bulletin - Issue 289 - 19 November 2012

Monday 19 November 2012

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***LATE NEWS: This Tuesday afternoon (20 November) at 5pm, Jan Luba QC will be leading a free seminar on Human rights defences and possession claims in Nottingham. For venue details and to register to attend, please Email Cheryl Weston.

***STOP PRESS: We apologise to readers for the difficulties that they will have faced using the hypertext links to documents on the Communities & Local Government website given in last week's issue (and now also in previous issues) of the Bulletin. This results from the migration in the middle of last week of the DCLG webpages into the generic Gov.UK Website. It is not yet clear how 'archive' material will be accessed.

The Latest Housing Law News

National Housing Strategy: on 15 November 2012 the third edition of the Housing Report, examining progress of Government policy in relation to housing, was published by the National Housing Federation, Shelter and the Chartered Institute of Housing. It suggests that overcrowding, homelessness, housing costs and affordability in the private rental market are all getting worse, not better, in England. For a copy of the new report, click here.

Housing fraud: the Prevention of Social Housing Fraud Bill has completed all its stages in the House of Commons and will have its Second Reading in the House of Lords next week. For the latest version of the Bill, click here. For the updated Explanatory Notes, click here. For a useful summary of the background to the Bill and of the Bill's provisions, written by the House of Commons Library, click here.

Selling social housing: the latest annual figures for sales by social landlords in England were published on 15 November 2012.There were an estimated 3,720 right to buy sales in 2011-12, a 1% increase from 2010-11. But the vast majority of the 9670 disposals of social housing last year were made by housing associations which were selling stock to private sector purchasers. For the full statistics, click here. Right to buy sales by local authorities are, however, now significantly growing again. Councils sold an estimated 444 dwellings under the RTB scheme in the first quarter of 2012-13 and an estimated 1,043 dwellings in the second quarter. For the RTB statistics, click here.

Mobile Homes: today (19 November 2012) new rules come into force in Wales setting out the terms of the new written statement that site owners must provide in relation to an agreement to station a mobile home on a protected site in Wales. For the new regulations, click here.

The Latest Housing Case Law

Fuller digests of most of the cases noted each week in this Bulletin appear in an online, indexed and searchable database edited by Jan Luba QC and called the Case Law Digest. For details of that service, click here.

Moore v Secretary of State for Communities [2012] EWHC 3192 (Admin)
16 November 2012

The claimant was a Romany Gypsy. She moved her mobile home and caravan onto equestrian land in the Green Belt and sought planning permission to station them there and live in them. Planning permission was refused by the local council and that decision was upheld by an inspector. The council intended to seek an injunction to secure her immediate eviction from the land. She appealed against the planning inspector's decision to refuse her even temporary planning permission. The High Court allowed her appeal. The inspector had failed to give adequate or rational reasons for refusing temporary consent. Having regard to Article 8 of Human Rights Act 1998 Schedule 1, it had been irrational for even temporary permission to be refused given that the claimant faced immediate eviction, she was disabled, she had three dependent children living with her, there were no spaces on official council gypsy or traveller sites, the claimant had a cultural aversion to conventional housing and there was no evidence that any alternative lawful sites were available to her. For the judgment, click here.

R v Waya [2012] UKSC 51
14 November 2012

The defendant bought a flat in London for £775,000, of which £310,000 came from his own resources. The balance of £465,000 was provided by a mortgage lender, G E Money Home Lending. In order to obtain the loan, the defendant made false statements about his employment record and his earnings. The property increased in value. It was remortgaged. The mortgage lenders suffered no loss and their interests were at all times protected by the value of the property. The defendant was later convicted of obtaining a money transfer by deception, contrary to Theft Act 1968 section 15A, relating to securing the mortgage. He was sentenced to 80 hours community punishment and a judge made an order under the Proceeds of Crime Act (POCA) that he pay £1.54m [arrived at by deducting from the then market value of the flat (£1.85m) the sum of "untainted" money (£0.31m) paid by the defendant out of his own resources on the original purchase]. The Supreme Court unanimously held that POCA had to be read so as to apply proportionately and that an appeal against the confiscation order had to be allowed. The majority agreed a substitute order for repayment of £392,400. For the judgment, click here.

R(Southern Landlords Association) v Thanet DC [2012] EWHC 3187(Admin)
13 November 2012

The claimant association applied for judicial review of a decision of the council to designate two wards in its district as a selective licensing area under Housing Act 2004 Part 3. The grounds were that there was a lack of evidence to meet the statutory requirements for selective licensing and a failure to consider alternative means of achieving the objectives that selective licensing is intended to achieve. The High Court rejected the claim. The designation has been lawfully made without any misdirection by the council. For the judgment, click here.

Charles Terence Estates Ltd v Cornwall Council [2012] EWCA Civ 1439
13 November 2012

The council was established in 2009 as a unitary authority and absorbed, among others, the liabilities of a district and borough council. Those two councils had taken long leases of 30 properties from the claimant company. The properties were used to provide temporary accommodation to the homeless. The councils had supplied loans and grants to the company to help it enter into private sector leasing arrangements in this way. The new unitary council ceased to pay the rents and the company sued. That claim was dismissed by the High Court. It held that the leases had no legal effect and were nullities. They had been entered-into by both councils in breach of their fiduciary duties to have regard to open market rents and instead had been taken at high rents. The High Court decided that the new unitary council was no longer bound by the leases but failed in its claim to recover rent paid and the capital monies advanced at the outset because the company had changed its position (to its detriment) on the basis of the void leases. The Court of Appeal allowed the company's appeal. It held that there was no justification for reading the words "at a reasonable price" into the council's statutory power to acquire housing (Housing Act 1985 section 17). Even if the council had acted in breach of a fiduciary duty, in advancing the grants and agreeing higher than market rents, that was not an answer to the company's claims because the council had the legal power to enter into the leases. For the judgment, click here.

Pankhania v Chandegra [2012] EWCA Civ 1438
9 November 2012

The claimant and defendant jointly bought a property with the assistance of a mortgage. Not only was the purchase in their joint names as legal owners but they entered into a declaration of trust that they were tenants in common and the beneficial interests were to be held by them in equal shares. When, later, the claimant sought an order that the property be sold, the defendant claimed that she was entitled to the whole beneficial interest under a constructive trust based on the common intentions of the parties. A judge accepted that defence. The Court of Appeal allowed the claimant's appeal. In the absence of a defence that the trust deed was a 'sham', or that it had been obtained by fraud or undue influence or was vitiated by mistake, it settled the respective beneficial interests and there was no scope for introducing a 'constructive' trust. For the judgment, click here.

Camden LBC v Catherine Boyle
6 November 2012

The defendant was the private landlord of a licensed HMO. In January 2011 she had been made subject to a two year ASBO prohibiting her from causing harassment, alarm or distress to her tenants, entering their rooms without consent, and cutting off their gas and electricity supply. By an Improvement Notice served in April 2011 she was required to carry out extensive works to deal with serious hazards in relation to excess cold, entry by intruders, damp, fire, food safety, and falls. The work was not done and a council inspection in May 2012 found that the fire detection and alarm system was not connected to a power supply, fire doors were inadequate and furniture was non fire-retardant. The HMO had poor thermal efficiency because there was a lack of insulation to the roof and walls and the single glazed windows were in a state of disrepair allowing for draughts. On a prosecution brought by the council, she was found guilty of failing to carry out works specified in an Improvement Notice, four breaches of fire-related HMO regulations, and breach of the HMO licence by providing her tenants with non-fire retardant furniture. At Highbury Magistrates Court she was fined £3,600 and ordered to pay costs of £4459.60. For more information on the prosecution, click here.

Haringey LBC v Andreas Antoniades
25 October 2012

The defendant was the private owner of a house. Without planning consent, he had converted it into flats to rent out. The council served an enforcement notice and the defendant initially restored the property to use as a house. However, again without planning permission, he later re-converted it into nine flats which he rented out. The council then prosecuted for multiple breaches of the enforcement notice. At Enfield and Haringey Magistrates Court the defendant pleaded guilty. He was fined £13,500 with costs of £1,980. For more information on the prosecution, click here.

Schubart Park Residents Association v City of Tshwane MM [2012] ZACC 26
9 October 2012

Four blocks of council flats had become very run down. Most flats were occupied by tenants but many by unauthorised occupants. One block was unoccupied but 700 families lived in the other three blocks. After 10 days without any electricity or water supply, the residents began a protest which escalated into violence, arson and vandalism. The police cordoned-off the area and all the families were forced to leave. The High Court declined to grant orders restoring the residents to their homes. The Constitutional Court of South Africa allowed an appeal. The evictions of the occupiers had not been lawful. The state authorities had only been justified in preventing occupation while the scene was unsafe. As soon as it became safe, the residents should have been allowed to return. If the council wanted to exclude any individual permanently it had to apply for a possession order in the courts in the usual way. ThE Court declared that the residents (whether tenants or not) were entitled to return to their homes as soon as reasonably possible. For the judgment, click here.

Optima Community Association v Ker [2012] EWCA Civ 1441
4 October 2012

The claimant association developed a housing scheme. It was funded by a grant from the Homes & Community Agency for the provision of mixed housing, part for social rent and part for shared ownership. Because the shared ownership element of the scheme proved difficult to sell, the association offered the properties on what it called a "FlexiBuy" scheme. Lettings were on the basis that this was a secure way to save up for a deposit while occupying. The defendant took a tenancy on those terms. The association later sought possession and a possession order was granted. The Court of Appeal granted permission to appeal and a stay. The appeal raised a question of some significance as to whether an element of the amount being paid to the landlord was truly 'rent' or was a 'savings scheme' for a deposit for a future purchase (and what effect that question might have on the proportionality of recovery of possession).

Housing Law Articles

Recent developments in housing law
N. Madge and J. Luba
[2012] November Legal Action 19
For back issues of articles in this series, click here.

The writing's on the wall for the homeless
(commentary on use of the private rented sector for the homeless)
L. Davies
[2012] 13 November Morning Star
For a copy of the article, click here.

Forgive not our trespassers
(commentary on new offence of squatting in residential premises)
M. Robinson
[2012] 154 November/December Adviser 18

Home page: reasons to be cheerful
(human rights defences to possession claims)
M. Robinson
[2012] 154 November/December Adviser 25

A rodent's tale
(dealing with rat infestations)
S. O'Neill
[2012] 16 November Inside Housing 31
For a copy of the article, click here.

Housing Fraud
(commentary on the new Bill)
J. Bates
[2012] 16 November Inside Housing 31
For a copy of the article, click here.

Housing Law Events

This Week

20 November 2012
Human rights defences to possession claims
An evening seminar with Jan Luba QC in Nottingham
For the details, Email Cheryl Weston.

20-21 November 2012
New Approaches to Allocations, Lettings & Homelessness Conference 2012
A two-day Chartered Institute of Housing conference in Nottingham
For the details, click here.

21 November 2012
Housing Law Update
An evening meeting in London of HLPA
For the details, click here.

22 November 2012
Gypsies and Travellers: An Update
An afternoon seminar at Garden Court Chambers
For the details, click here.

This Winter

28 November 2012
Housing Allocations and Homelessness: The Practitioner Seminar Series 2012
A Jordans Housing seminar in Manchester
Includes a free copy of the forthcoming Housing Allocation and Homelessness (3rd edition) by Jan Luba QC and Liz Davies
For the details, click here.

29 November 2012
Housing Allocations and Homelessness: The Practitioner Seminar Series 2012
A Jordans Housing seminar in Birmingham
Includes a free copy of the forthcoming Housing Allocation and Homelessness (3rd edition) by Jan Luba QC and Liz Davies
For the details, click here.

30 November 2012
Housing Allocations and Homelessness: The Practitioner Seminar Series 2012
A Jordans Housing seminar in London
Includes a free copy of the forthcoming Housing Allocation and Homelessness (3rd edition) by Jan Luba QC and Liz Davies
For the details, click here.

5 December 2012
After the possession order: set aside or appeal?
An evening seminar in London for HLPA members
For the details, click here.

6 December 2012
Social housing: shaping an Allocations policy
A White Paper Company conference
For the details, click here.

7 December 2012
Housing management: law and practice
A Lime Legal conference in London
For the details, click here.

11 December 2012
Housing Law Conference
Annual conference of HLPA in London
For the details, click here.

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