2013 04 Housing

Wednesday 1 May 2013

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Johnson v Old [2013] EWCA Civ 415 (Arden LJ, Jackson LJ and Sir John Chadwick): a tenancy deposit case. Second appeal from the County Court. The appellant, Mrs Old, was an assured shorthold tenant. She entered into a six month fixed term tenancy in 2009. The tenancy agreement provided that “[t]he first six months rent are to be paid in advance”. The agreement also provided for payment of a deposit. Both sums were paid; the former was put toward the rent, the latter was placed in a tenancy deposit scheme. At the end of the fixed term tenancy Mrs Old entered into two subsequent fixed term tenancies on virtually identical terms. The six months advance rent was treated in the same way as the earlier payment in both instances. At the end of the third fixed term tenancy she held over as a monthly periodic tenant. She fell into arrears. The Landlord Mr Johnson served a notice under s21 Housing Act 1988. The sole issue in the case was whether the payment made further to the requirement to pay six months rent in advance amounted to a tenancy deposit within the meaning of s212(8) Housing Act 2004, and hence whether the Landlords failure to place the sum in a tenancy deposit scheme invalidated the s21 notice. The court held that on the construction of this particular tenancy agreement the payment was not intended to be held as a security for the obligations of the periodic tenancy and the s21 notice was therefore valid. (Click here for judgment.)

Obiorah v Lewisham LBC [2013] EWCA Civ 325 (Kitchin, Lloyd Jones and McCombe LJJ): a homelessness appeal raising an issue of legitimate expectation. The Appellant, Ms Obiorah, had been housed in temporary accommodation pursuant to s193 Housing Act 1996, provided by the Respondent, Lewisham LBC, since 2004. In 2011, Ms Obiorah was made an offer of alternative temporary accommodation. She refused on the footing that she believed she was entitled to permanent accommodation and that temporary accommodation was therefore unsuitable. Lewisham took the view that the offer was suitable and treated the s193 duty as having come to an end. The decision was upheld on review and on appeal. On a second appeal Ms Obiorah contended that the decision was flawed on the grounds that: (i) she had a legitimate expectation of permanent accommodation; alternatively (ii) fairness dictated that Lewisham should have made clear to her that the temporary acommodation might in due course have become a permanent home had she accepted it; and (iii) there had been a breach of regulation 8 Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 in the conduct of the reivew process. The Court of Appeal dismissed the appeal. There was nothing in Lewisham's allocation scheme or in their dealings with Ms Obiorah to give rise to a legitimate expectation that she would only be offered permanent accommodation. It was not unfair in the legal sense not to have informed Ms Obiorah that the temporary acommmodation could become her permanent home; the material point was that she had been informed of the consequences of refusing the offer. Further there had been no breach of regulation 8. (Click here for judgment.)

Lane v Kensington and Chelsea LBC (QBD) unreported 19/04/2013 (Sir Raymond Jack): A successful article 8 appeal in the housing context, albeit an unconventional one. (Note that this was an extempore judgment and this summary has been adapted from the Lawtel note.) Mr Lane, the Appellant, suffered from obsessive compulsive disorder aggravated by changes to his home. He resided in a property owned by the Respondent, Kensington and Chelsea LBC. He had continued to live in the property following the death of his parents. He did not pay rent and had no proprietary interest in the property. However as a result of his disorder he was deeply attached to a tree growing within the garden of the property. At the request of a neighbour, Kensington and Chelsea made an order entitling the neighbour to fell the tree. Mr Lane sought an injunction preventing this. At first instance this was refused. On appeal, Sir Raymond Jack held that the tree formed part of Mr Lane’s “home” for the purposes of article 8 and that the judge at first instance had erred in failing to consider the proportionality of removing it. The appeal was allowed and the matter remitted for consideration of proportionality.

Salvesden v The Lord Advocate (Scotland) [2013] UKSC 22 (Hope, Kerr, Wilson, Reed and Toulson JJSC): a Scottish case involving article 1 protocol 1 ECHR. Since 1948 agricultural tenants in Scotland had enjoyed virtually unlimited security of tenure under statute. To circumvent this, a practice had emerged of granting tenancies to partnerships formed between the landlord and tenant. Upon dissolution of the partnership, the landlord would be entitled to take possession. Legislation was enacted – in the form of the Agricultural Holdings (Scotland) Act 2003 – which was intended to modernise the law and put an end to this practice. The legislation applied retrospectively in order to catch those landlords who had served notices immediately prior to the change in the law with a view to avoiding the effect of the change. The Supreme Court held that the relevant legislative provision was incompatible with article 1 protocol 1 ECHR. (Click here for judgment.)

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