2011 12 Housing

Sunday 1 January 2012

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Sun Street Properties Ltd v Persons Unknown [2011] EWHC (Ch). (Roth J): Protestors took possession of the Claimant's unused office building as part of their campaign. The Claimant obtained an order for possession from a judge during a without notice out-of-hours telephone hearing. The Defendants applied to set the possession order aside on the basis of several procedural irregularities. The High Court refused that application on the grounds that even if there had been irregularities, the Defendants' rights under Articles 10 and 11 of the Human Rights Act 1998 Schedule 1 could not legitimise their occupation of the property or provide any defence to a possession claim. The Court of Appeal granted a stay of execution of the possession order pending an oral hearing of a renewed application for permission to appeal.

Islington LBC v Boyle [2011] EWCA Civ 1450 (Mummery LJ, Etherton LJ and Patten LJ):The defendant was the secure tenant of a flat in Islington. Her partner had a house in the country. The tenant moved to live in the house for a number of years and her partner moved to live in the flat in London. The Claimant claimed the tenant no longer occupied the flat as her only or principal home and security of tenure had been lost. It served notice to quit and claimed possession. A judge at first instance dismissed the claim. The judge held that the absence was only temporary and that she had intended to return. The Court of Appeal allowed the council's appeal. This was a 'two homes' case and the judge had not ruled on the council's claim that, even if the tenant could still be in deemed occupation of the flat, it was not her principal home. A re-trial was ordered. (click here for transcript)

Gladysheva v Russia [2011] ECHR 202. The applicant's appeals were dismissed and she applied to the European Court of Human Rights complaining of infringement of her right to respect for her home. It held that: (1) although the possession order had not been enforced, the very making of such an order amounted to an infringement of the Article 8(1) right; (2) the order had been lawfully obtained in pursuit of a legitimate aim (the provision of housing to welfare claimants to whom the flat would be reallocated); (3) on the question of whether the interference was 'necessary', the state had a narrow margin of appreciation when seeking to justify interference with Article 8 rights in respect of housing matters; and (4) the domestic courts had made no examination of the proportionality of the eviction and had not accounted for the appellant’s Article 8 rights when deciding to make a possession order. The Strasbourg Court made an order directing that the applicant's title be restored, the eviction rescinded, 9000 euros compensation be granted and 11,245 euros costs paid. (click here for transcript)

Potter v Dyer [2011] EWCA Civ 1417 (Ward LJ, Etherton LJ, and Pitchford LJ). One of two joint tenants left a property and later, in response to an invitation from the landlord, gave notice to quit. The landlord then sought possession. The remaining tenant wanted to argue that the notice was not valid because it had been induced by the landlord's misrepresentation. The tenant was refused permission to amend his statement of case to advance that defence. The Court of Appeal dismissed his appeal and held that even if the tenant could establish the misrepresentation, the notice could not take effect as a simple release of the other joint tenant's interest in the tenancy which was the construction he wished to place on it. (click here for transcript)

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