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Housing case law update - November 2020

The last month has seen the Court of Appeal and the High Court hand down a number of key rulings affecting the housing sector. Paul Lloyd, Charlotte Rawson and Jatinder Bhamber analyse the judgments.

Gateway Housing Association v The Personal Representatives of Mohammed Nuruj Ali (1) and Delara Begum (2) [2020] EWCA Civ 1339

22 October 2020, Court of Appeal

The Court of Appeal has held that, provided that the copy of the Notice to Quit (“NTQ”) is served on the Public Trustee before the original NTQ served at the property expires, it validly complies with section 18 of the Law of Property (Miscellaneous Provisions) Act 1994 and ends the tenancy on the date on which the original NTQ expires.

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A joint tenancy had been granted to Mr Ali and his wife Mrs Nessa. Mrs Nessa died and Mr Ali became the sole tenant by survivorship. Mr Ali then died and the claim was defended by Ms Begum, who said that she had married Mr Ali several years earlier.

Gateway Housing Association (“Gateway”) served a NTQ addressed to the personal representatives of Mr Ali and sent it to the property itself. The NTQ was deemed to have been served on 17 October 2018. The NTQ required the tenants to deliver up possession of the property after a four-week period (specifying 12 November) or, “if later, a day on which a complete period of your tenancy expires next after the end of four weeks from the service of this notice”. The 12 November date could not work, as it was less than four weeks away, but, relying on the wording of the saving clause, the notice expired either on 18 or 19 November. Gateway sent a copy of the notice to the public trustee on 18 October, accompanied by the requisite form NL (1) and the fee. Deemed service would have been 22 October. The public trustee later said the application for registration was received on 30 October. If that was a separate notice it would have expired, relying on its saving clause, on 2 December 2018.

Ms Begum challenged the validity of the NTQ, arguing that there were two notices: one to the personal representatives and one to the public trustee. As they gave different expiry dates, she argued that the claim should be dismissed. The County Court agreed and dismissed the claim for possession. Gateway appealed.

In the Court of Appeal, Gateway raised four grounds of appeal and the barristers for Ms Begum opposed the appeal. They said that the NTQ to the personal representatives and the public trustee were both required, both had to expire on the same date and the recipients must both be able to work out what that date was. When Gateway pointed out the practical difficulties of this, the defence said that the notices could be sent on the same day and, if the landlord was worried about them being received some time later, as was the situation in this case, the landlord could arrange for personal service on the public trustee. The Court of Appeal thought that was “impractical and unrealistic” and rejected the suggestion that there were two notices that had to be of the same form and effect.

The Court of Appeal, in allowing the appeal, found that (1) the original Notice served on the personal representatives of the deceased is the operative notice; and that (2) provided that the copy is served on the public trustee before the original notice expires, the copy is validly served and the landlord has complied with section 18 of the Law of Property (Miscellaneous Provisions) Act 1994. The case was sent back to the County Court to deal with rest of the issues raised by Ms Begum in her defence.

The Court of Appeal has now solved the issue by requiring landlords to serve the NTQ on the personal representatives at the property. Before that expires, they must have served a copy on the public trustee (along with the Form NL (1) and the fee). We would advise that it is safest to serve both on the same day, although it is not required.

Capsticks represented Gateway Housing Association in this hearing. A full summary of the case, as it appears on our website, is here.

A copy of the judgment is here.

Mayor and Burgesses of the Royal Borough of Kingston-upon-Thames v Moss [2020] EWCA Civ 1381

27 October 2020, Court of Appeal

The Court of Appeal has held that a local authority was a re-seller under Water Resale Orders and subject to a cap on tenant charges.

The local authority (Royal Borough of Kingston-Upon-Thames) owned a number of council houses and flats. Under the Water Industry Act 1991, Thames Water was entitled to charge the council tenants for the supply of water and sewerage services. Royal Borough of Kingston-Upon-Thames and Thames Water signed a formal agreement enabling Royal Borough of Kingston-Upon-Thames to receive a commission for providing these services. Under the agreement, the council tenants would not have to pay more for their water and sewerage than they would have had to pay if they had been paying Thames Water directly. The agreement meant that the tenants only had to pay one organisation for both their rent and their water/sewerage charges.

Following the decision in Jones v London Borough of Southwark [2016] EWHC 457, whereby it had been held that Southwark Council had been “reselling” water to tenants without passing on the savings it had made through a similar agreement with Thames Water, one of the tenants (Mr Moss) asked Royal Borough of Kingston-Upon-Thames for a refund of any excess water and sewerage charges he had paid since the commencement of his tenancy. He argued that the commission received by Royal Borough of Kingston-Upon-Thames was not reflected in his water bill. The High Court, ruling in favour of Mr Moss, held that Mr Moss was entitled to be reimbursed for the overpayments he had made to Royal Borough of Kingston-Upon-Thames since the commencement of the agreement. Royal Borough of Kingston-Upon-Thames appealed.

The Court of Appeal, in dismissing the appeal, held that the Royal Borough of Kingston-Upon-Thames was a “re-seller” under the Water Resale Orders 2001 and 2006, as a result of its agreement with Thames Water. It was bound by the Orders’ maximum charge provisions and had therefore overcharged Mr Moss.

The decision will mean that local authorities with similar agreements will need to review their contractual arrangements with utilities providers.

A copy of the judgment is here.

R (Z and another) v London Borough of Hackney and another [2020] UKSC 40

16 October 2020, Supreme Court

The Supreme Court has held that a housing association did not unlawfully discriminate against other housing applicants under the Equality Act 2010 by allocating social housing only to members of the Orthodox Jewish community.

The High Court had held that that Agudas Israel Housing Association Limited had been justified in taking “positive action” under the Equality Act 2010 because members of the Orthodox Jewish community suffered substantial disadvantages, harassment and had different needs. The Housing Association’s policy was also deemed lawful because of its status as a charity that was established to let its properties to Orthodox Jews. The appellants appealed, arguing that the High Court had misapplied the proportionality assessments required by the Equality Act 2010. The appellants appealed, but this appeal was rejected by the Court of Appeal, which held that (1) section 193(2)(b) of the Equality Act 2010 did not require a proportionality assessment, and that (2) the appellants had failed to establish that the housing allocations policy was within the ambit of articles 8 and 9 of the European Convention on Human Rights. The appellants appealed again.

The Supreme Court, in dismissing the appeal, held that the lower courts had been correct to find that the housing allocation policy was proportionate and lawful under the Equality Act 2010.

The decision will be welcomed by organisations whose objectives are to support specific groups of people with protected characteristics.

A copy of the judgment is here.

GR Property Management Ltd v Safdar & Ors [2020] EWCA Civ 1441

3 November 2020, Court of Appeal

The Court of Appeal has held that an application to determine the terms of acquisition of a freehold had to be made to the First-tier Tribunal, not to the County Court.

The tenants wished to acquire the freehold of their flats and gave notice under the Leasehold Reform, Housing and Urban Development Act 1993, including the proposed terms of their acquisition. The freeholder (GR Property Management) served a counter-notice. The tenants applied to the County Court for permission to amend an error in the initial notice and for determination of the terms of acquisition. GR Property Management objected, stating that there was no need to amend the initial notice and that the First-tier Tribunal (rather than County Court) only had jurisdiction to determine the terms of acquisition. It was held that the County Court had jurisdiction to deal with the tenants’ application for leasehold enfranchisement. GR Property Management appealed.

The Court of Appeal, in allowing the appeal, held that the application had to be made to the First-tier Tribunal, not to the County Court. It held that if the tenants applied to the County Court to amend the initial notice, they should ensure that an application is also made to the First-tier Tribunal to determine the terms of acquisition within six months of the counter-notice. Consequently, in this instance, the initial notice was deemed to be withdrawn.

A copy of the judgment is here.

Prempeh v Lakhany [2020] EWCA Civ 1422

30 October 2020, Court of Appeal

The Court of Appeal has held that a notice seeking possession under section 8 of the Housing Act 1988 does not have to include the landlord's name and address, provided that it states the agent's name and address.

A tenant (Ms Prempeh) had an assured shorthold tenancy of a flat. She had rent arrears of more than £11,000 and the Landlord (Mrs Lakhany) served a section 8 possession notice on her, signed by her solicitors as her agents. Ms Prempeh argued that the section 8 notice was invalid because it was a “demand for rent” and therefore must include the name and address of the landlord (i.e. Mrs Lakhany), and not just that of the agent. The Deputy District judge rejected Ms Prempeh’s argument and made a possession order. On appeal, the County Court, whilst allowing the appeal in part on different grounds, rejected the contention that a section 8 notice that relies on rent arrears is a demand for rent. The issue of whether the prescribed form for a section 8 notice itself required the landlord’s name and address was left open. Ms Prempeh appealed to the Court of Appeal.

The Court of Appeal, in dismissing the appeal, held that (1) the section 8 notice was not a “demand for rent” within the meaning of s.47 of the Landlord and Tenant Act 1987. There was no definition of the phrase “demand for rent” in the Housing Act 1988 Act and the word “demand” should be given its ordinary meaning. Whatever the precise scope of the term “demand for rent”, there had to be some form of communication from the landlord to the tenant requiring payment of the arrears; and (2) in circumstances where the section 8 notice is being signed by an agent authorised by the landlord (e.g. a solicitor), the form does not also require the landlord's name and address to be included.

This decision effectively removes a ‘technical’ defence to possession proceedings, whereby a section 8 notice signed by the landlord’s agent is deemed invalid simply because it was signed by an agent and not the landlord.

A copy of the judgment is here.

Crocker v Devon And Cornwall Police [2020] EWHC 2838 (Admin)

28 October 2020, High Court

The High Court held that the Crown Court had jurisdiction to extend the 21-day time limit for appealing against a closure order issued under the Anti-social Behaviour, Crime and Policing Act 2014.

Devon And Cornwall Police had applied to the Magistrates’ Court for a closure order in respect of a flat rented by Ms Crocker following complaints made by neighbours about anti-social behaviour. Ms Crocker did not attend the hearing, alleging that she had been told that it had been adjourned, and the Court issued a closure order for three months. Ms Crocker issued an appeal notice to the Magistrates' Court, but the 21-day period for appealing, set out in the Anti-social Behaviour, Crime and Policing Act 2014, expired. When the appeal notice was served on Devon And Cornwall Police, the Crown Court ruled that Ms Crocker’s appeal was out of time. Ms Crocker appealed the Crown Court's decision that it had no power to extend the time for service of the notice of appeal.

The High Court, in allowing the appeal, held that the Crown Court had jurisdiction to extend the time for an appeal after the expiry of the 21-day period pursuant to r.7(5) of the Crown Court Rules 1982. The whole of rule 7 applied to civil appeals under Anti-social Behaviour, Crime and Policing Act 2014.

A copy of the judgment is here.

Paul Lloyd is a partner, Charlotte Rawson is an associate and Jatinder Bhamber is a Chartered Legal Executive Lawyer at Capsticks.

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