Court of Appeal backs tenant forced to move out for years of repairs

A woman who moved out from her flat while a local authority carried out repairs still held her tenancy eight years later, the Court of Appeal has ruled.

In Francis v Brent Housing Partnership & Ors [2013] EWCA Civ 912 the claimant, Caroline Francis, occupied from June 1981 to May 2005 a flat owned by Brent Council (No 25C Stonebridge Park).

In order for the local authority to carry out necessary repairs, Ms Francis assumed temporary occupation of a different flat (No 1 Kingthorpe). On the fact of it, a ‘decant’ agreement with Brent entitled her to return to No 25C when the works were completed.

But this took five years. Ms Francis’ complaint was that during her occupation of the second flat, the council let No 25C to another person and refused to allow her to return.

She sought an order for possession of No 25C, injunctions directed at enabling her to resume undisturbed possession of it, and damages.

A judge at Central London County Court ruled in March 2012 that Ms Francis had a secure tenancy of the second flat but no tenancy of No 25C. He pointed to an old possession order for rent arrears and ruled that the decant agreement made no difference.

The Court of Appeal has now overturned that decision. Lord Justice Rimer said: “The judge was of the view that, in signing the decant agreement, the parties had simply forgotten the making of the earlier possession order and had signed the decant agreement in unawareness of it. There was, however, no evidence before him from either party to such effect and so in that respect he was simply making an educated guess.

“He may have been right, although I regard it as equally possible that neither of the parties had overlooked the prior order or its effect but that Brent nevertheless thought that the form of decant agreement that it promoted for signature by the parties would achieve the commercial end that both it and Ms Francis intended to achieve, namely the removal of Ms Francis on a temporary basis, the conferring on her of the right to return in due course to No 25C and, if necessary, the conferring on itself of the right to compel her to do so by recourse to Ground 8.”

He said: “In my view….absent any evidence from either party that the decant agreement was vitiated by relevant mistake, the court ought not to find that it was. There is no justification for any conclusion that, prior to the signing of the decant agreement, Brent thought, understood or believed that Ms Francis was anything other than a tolerated trespasser in No 25C.

“She had in fact been such for 14 years and, although the relationship had had its ups and downs, Brent appears to have regarded her as, for practical purposes, a permanency. When, however, in due course the need arose to remove her from No 25C for repair purposes, Brent and Ms Francis agreed to deal with this by the decant agreement.”

Lord Justice Rimer added that it was apparent from the agreement that Brent was expressly recognising Ms Francis as its secure tenant.

He said it was not open in the circumstances for Brent to repudiate the recognition of the secure tenancy in Ms Francis to which it signed up. “In the absence of any evidence that the decant agreement was entered into on the basis of a mistake by either side, I prefer to approach it on the assumption that the parties had a full grasp of the relevant history but were nevertheless evincing a combined intention that, as from the moment of the signing of the decant agreement, Ms Francis was to be recognised as having the status of a secure tenant of No 25C.”

The judge continued: “They reflected that recognition by reciting that she was still a secure tenant under the 1981 agreement. In that respect, they were in error since she was not and could not be such a tenant. But that consideration ought not to stand in the way of achieving what the parties plainly intended to achieve.”

Lord Justice Rimer concluded: “Upon the signing of the decant agreement, Ms Francis became a secure tenant of No 25C and, following her removal to No 1, remained a tenant of No 25C.”

Jan Luba QC and Gillian Ackland-Vincent, instructed by Edwards Duthie Solicitors, represented Ms Francis.