Possession actions against introductory tenants

Matthew Hyam reports on a social landlord's successful High Court challenge to an adverse decision about the wording of a notice seeking possession against an anti-social introductory tenant.

In the not so recent past, social landlords were able to take possession actions on mandatory grounds against certain categories of tenant without needing to justify its reasons in court, or face a defence on anything other than procedural grounds. In such cases the courts’ hands were tied, if procedural requirements were met. The only route open to dispute the decision was to apply for judicial review of the process.

Recently, there have been monumental changes following a spate of decisions in the Supreme Court and the position has somewhat shifted, to allow the defendant the opportunity to advance both public law and human rights defences. Possession on mandatory grounds is essentially a thing of the past. Traditionally, landlords did their best to assist tenants facing such action to ensure the process was fair, transparent and accessible.

Against this background, it is testing to face technical defences seeking to frustrate the landlords’ claim for possession by challenging the wording of a notice and seeking to extend the scope of the statutory framework which a landlord must work within.

Dismissal in the County Court

The claim in Wolverhampton City Council v Shuttleworth was dismissed on the basis that the construction of the notice restricted the tenant’s right to seek a review of the landlord’s decision, to only filling in the review request form it enclosed to aid the tenant in invoking that right.

It was important to seek clarity on this decision because there was no other legal authority in this area and the implications were potentially far reaching, not only for my client, but for local authorities and ALMOs generally. When the appeal was lodged, the County Court decision was already being used in the Midlands as persuasive authority and a large number of cases were stayed, pending appeal.

The appeal challenged both the lower court’s decision on the construction of the notice, and also whether the legislation prohibits a landlord from restricting the way in which a tenant can request a review of a decision to take possession of an introductory tenancy.

Higher judgment

On 27 November 2012, the case was heard by The Honourable Mr Justice Keith, who allowed the appeal. Firstly, he held that the construction of the notice did not restrict the tenant’s right to a review, to only filling in the form that the landlord had enclosed. The wording could have been better to remove any ambiguity, but it was not decisive.

Secondly, he held that the legislation simply required the landlord to inform the tenant of the right to request a review (amongst other requirements which were not challenged in these proceedings) and nothing more. There would, therefore, be nothing to stop a local authority prescribing the way in which tenants can request a review, if they so wished. This would not make a notice invalid.

Setting a precedent

The decision is a welcome one and my client, Wolverhampton Homes, was particularly overjoyed given the current climate in which landlords are facing a number of other challenges of proportionality.

Although similar arguments about wording of notices could be made within the context of a public law and/or human rights defence, the decision is important in removing the more stringent consequences of such arguments in a procedural context, whereby a notice could be conceived as invalid and the claim fails for not meeting statutory requirements.

Conclusion

I am delighted that the correct decision has been reached. Had the appeal been dismissed, I believe that this would have inevitably lead to vast amounts of undeserving and defaulting tenants obtaining security of tenure on a technicality. This would surely have been contrary to what Parliament had intended when introducing the legislation governing introductory tenants.

Although I act on behalf of social landlords, I feel the decision is sensible for both landlords and tenants in a housing context generally. If the appeal had been dismissed, allowing such a technical argument, I feel that landlords may have been discouraged from providing assistance to tenants other than what is required by law. If this were the case, the onus would be squarely on the tenant to take steps to protect themselves, which would ultimately make access to the review procedure more difficult for the majority who would welcome and require help.

Matthew Hyam is an associate at law firm Berrymans Lace Mawer LLP. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..