2013 07 Housing

Thursday 1 August 2013

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Malik v Persons Unknown [2013] EWCA Civ 798 (Lloyd and Toulson LJJ and Sir Alan Ward): a challenge to the rule in McPhail v Persons Unknown [1993] Ch 447. The Defendants had been squatting on an area of land close to Heathrow Airport since 2010. They were part of a group known as “Grow Heathrow” and had set up home there, putting considerable time and effort into cleaning up the land and restoring it as a market garden. Mr Malik, the owner of the land, sought possession. The occupiers sought to defend proceedings relying on Art.8 ECHR. At first instance HHJ Waldren-Smith made an outright, forthwith possession order. The judge proceeded on the basis that Art.8 could be relied on in a claim brought by a private landowner, on the basis that the court itself is a public authority within the meaning of s6 Human Rights Act 1998 and is therefore bound to act compatibly with the ECHR. She found that it was not disproportionate to make an outright order and that she had no power to postpone possession under s 89 Housing Act 1980 since the provision does not apply to trespassers. On appeal to the Court of Appeal, the Respondent conceded that Art.8 could be relied on in possession claims brought by private landowners and no argument was heard on this point. The Defendant’s sought to argue that the judge had erred in approaching the matter on the footing that the only two options were possession outright or dismissing the claim, effectively depriving Mr Malik of his ownership of the land. The question the judge should have considered was not if a possession order should be made but when. It was argued that the rule in McPhail (that a landowner is entitled to possession against trespassers forthwith as of right) could not stand in light of the decision of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104. The judge should have considered whether to postpone possession for up to six weeks under s89 Housing Act 1980. The Court of Appeal dismissed the appeal. The judge had considered when the possession order should take effect and had found that an outright order was proportionate. Accordingly the rule in McPhail did not arise for consideration. Nevertheless, Sir Alan Ward expressed the view obiter that McPhail was no longer good law and that Art.8 could be relied on in possession claims brought by private landlords. Having not heard argument on the whether Art.8 was applicable, Toulson and Lloyd LJJ refrained from expressing a view on either point. McPhail remains for another day. Jan Luba QC represented the Defendants. Click here for the judgement.

Francis v Brent LBC [2013] EWCA Civ 912 (Laws, Rimer and Beatson LJJ): a case involving tolerated trespassers and common intention tenancies. Ms Francis had been the secure tenant of Brent LBC living at 25C Stonebridge Park (25C). In 1991 an outright possession order was made against her on the basis of rent arrears. She remained in occupation with Brent’s permission and paid off the arrears. In 2005 Ms Francis was temporarily decanted by Brent into 1 Kingthorpe, Stonebridge (No 1) so that works of repair might be carried out on 25C. A decant agreement was signed with the intention that Ms Francis should be able to return to 25C when the works were complete. The agreement described Ms Francis as the secure tenant of 25C. Ms Francis fell into arrears at No 1 and a possession order was made in respect of that property. In 2010, following the completion of the works, Ms Francis sought to move back into 25C. By this stage Brent had re-let the property. Ms Francis brought proceedings seeking a declaration that she was the secure tenant of 25C. At first instance her claim was dismissed. The Court of Appeal allowed her appeal. From 1991 to 2005 Ms Francis had been a tolerated trespasser at 25C. As such, her prior secure tenancy could only be revived by court order. However the decant agreement evinced a combined intention to create a new secure tenancy of 25C. The judgment contains a useful recital of the circumstances in which the courts will infer that a new tenancy has been created from the conduct of the parties. Jan Luba QC represented the Defendants. Click here for the judgment.

R (CN) v Lewisham LBC and R (ZH) v Newham LBC [2013] EWCA Civ 804 and 805 (Moses, Kitchin and Floyd LJJ): a unsuccessful challenge to the decisions in Denousse v Newham LBC [2006] EWCA Civ 547, [2006] QB 831 and Mohammed v Manek and Kensington and Chelsea LBC (1995) 27 HLR 439 on Art.8 ECHR grounds. In Manek the Court of Appeal had held that s3 Protection from Eviction Act 1977 (the prohibition on eviction without due process of law) did not apply to temporary accommodation provided under the homelessness provisions contained in Housing Act 1985 (which preceded the analogous provisions under the Housing Act 1996). Such accommodation was not “occupied as a dwelling”, as it was only provided pursuant to a temporary agreement while inquiries were made into the individual’s homeless application. Therefore it was not necessary for a Local Authority to obtain a court order in order to lawfully evict an applicant from such accommodation. In Desnousse, the Court of Appeal held that the decision in Manek applied equally to temporary accommodation provided under the Housing Act 1996. In the instant case, CN was eight years old. His mother, JN, made a homeless application to Lewisham. They were placed in temporary accommodation under s188 Housing Act 1996 while inquiries were made. In due course Lewisham decided that they were in priority need but had made themselves homeless intentionally. They were given 28 days in which to leave the accommodation. Following several extensions of the accommodation, judicial review proceedings were issued on behalf of CN seeking an order that Lewisham should continue to provide accommodation until a possession order had been obtained. Permission was refused by the High Court but granted by the Court of Appeal. ZH’s case involved similar facts. It was argued on behalf of the Claimants that Desnousse and Manek could no longer be regarded as good law following the decisions in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 and Hounslow LBC v Powell [2011] UKSC 8, [2011] 2 AC 186, in particular the proposition that “any person at risk of being dispossessed of his home should in principle have the right to raise the question of the proportionality of the measure and to have it determined by an independent tribunal in the light of Art.8”, Pinnock [45]. To be read compatibly with Art.8, it was argued, s3 PEA 1977 should be interpreted so as to encompass temporary accommodation. The Court unanimously held that Desnousse and Manek remain good law; s3 Protection from Eviction Act 1977 does not apply to temporary accommodation provided under s188 or s190(2) Housing Act 1996. Such accommodation is not “occupied as a dwelling”. It followed that the notice requirements under s5 Protection from Eviction Act 1977 also do not apply. To hold otherwise, it was said, would have a real and serious impact on the ability of Local Authorities to house homeless families. The requirements of Art.8 in such case were met through the availability of judicial review. Click here for the judgment.

Johnson v Westminster LBC [2013] EWCA Civ 773 (Aikens and Lewison LJJ): a case concerning the power of the Court of Appeal to order accommodation pending appeal. Mr Johnson made a homeless application to Westminster. Westminster found that he had made himself homeless intentionally. This decision was upheld on review and on appeal to the County Court under s204 Housing Act 1996. Mr Johnson applied to the Court of Appeal for permission to bring a second appeal. He also sought interim accommodation pending resolution of the appeal, by way of interim relief. The Court of Appeal held that it had no jurisdiction to order accommodation pending appeal. The jurisdiction of the County Court to make such an order extended only to the determination of the s204 appeal by that court. It did not extend to onward appeals. Since the County Court lacked jurisdiction, CPR52.10 (which endows an appellate court with the powers of the lower court), could not endow the Court of Appeal with such a power. Further section 204A did not provide the Court of Appeal with any such jurisdiction. In such circumstances an appellant’s remedy lies by way of judicial review of the Local Authority’s decision. Judgment not yet available online.

Peake v Hackney LBC(QBD) unreported, 11 July 2013 (Lewison LJ): the requirement under s204(2A) Housing Act 1996, whereby an appellant must have “good reason” for bringing an appeal outside of the 21-day limit is compatible with Art.6 ECHR. Whether or not an appellant has good reason is a matter for the judge it is not helpful to refer to such reasons in terms of objectivity or subjectivity. Based on Lawtel summary. Judgment not yet available online.

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