Social Welfare Update: Notice requirements in ground 15A cases

Monday 28 October 2019

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Kemal Yildiz, the Appellant’s father, was the secure tenant of the respondent, the London Borough of Hackney. He occupied a four-bedroom house together with his son, the appellant, Yavuz Yildiz. The Appellant succeeded to his father’s tenancy upon his death on 4 September 2014 but, because he was under occupying the property, Hackney served him with a notice seeking possession citing ground 15A, Schedule 2 Housing Act 1985, which provides as follows:

The dwelling-house is in England, the accommodation afforded by it is more extensive than is reasonably required by the tenant and—
(a)  the tenancy vested in the tenant by virtue of section 89 (succession to periodic tenancy) or 90 (devolution of term certain) in a case where the tenant was not the previous tenant's spouse or civil partner, and
(b)  notice of the proceedings for possession was served under section 83 (or, where no such notice was served, the proceedings for possession were begun) more than six months but less than twelve months after the relevant date.
For this purpose 'the relevant date' is—
(a)  the date of the previous tenant's death, or
(b)  if the court so directs, the date on which, in the opinion of the court, the landlord (or, in the case of joint landlords, any one of them) became aware of the previous tenant's death.
The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include—
(a)  the age of the tenant,
(b)  the period (if any) during which the tenant has occupied the dwelling-house as the tenant's only or principal home, and
(c)  any financial or other support given by the tenant to the previous tenant.

The notice was dated 23 June 2015. It stated that possession proceedings would not be begun before 20 July 2015 and that (pursuant to s83(4) Housing Act 1985) the notice would lapse after 12-months. In the event, proceedings were issued in mid-2016 a few weeks after the 12-month period had expired.

Mr Yildiz sought to defend the claim arguing, among other things, that Hackney were not entitled to possession as the notice had lapsed. Hackney responded by making an application to dispense with the need for notice under s83(1)(b) on the basis that it was just and equitable to do so. This application was allowed by the District Judge at first instance and Mr Yildiz’s appeal against this decision was dismissed.

The Court of Appeal allowed a second appeal. Section 83(4) provides that a notice seeking possession ceases to be in force 12-months after the date specified in it. This means that such a notice does not constitute proper notice if proceedings are begun after the 12-month period has lapsed:

‘In other words, it is not good enough that the landlord at some stage, however long ago, served a notice which, pursuant to both its own terms and those of section 83, is now spent. A notice must still be current if a landlord is to issue possession proceedings on the strength of it.’

In the absence of a relevant notice (either because no notice was served or because the notice has lapsed) a claim for possession under ground 15A will be possible only if the proceedings were begun less than 12-months after the ‘relevant date’. The requirement for a notice cannot be waived.

This interpretation of ground 15A, the court explained, accords with the fact that the time provisions in ground 16 (and now ground 15A) are there ‘to ensure that the relative is not disturbed … so much later [than the death] that he is settled into the property as his own long-term home’. See Newport City Council v Charles [2008] EWCA Civ 1541, [2009] 1 WLR 1884,

In this case the relevant date was the date of the death of the tenant. As Hackney had issued proceedings more than 12-months after this date they were not entitled to rely on ground 15A.

Click here for the judgment: Yildiz v Hackney LBC [2019] EWCA Civ 133, 24 July 2019

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