Housing association fails in appeal over dismissal of possession claim

Social landlord Clarion Housing Association has lost an attempt to evict a resident who claimed she inherited a tenancy, despite the High Court finding some errors in an earlier County Court judgment.

In Clarion Housing Association Ltd v Carter [2021] EWHC 2890 (QB) Mr Justice Kerr said the case had involved a moot point and “a complicated set of issues”.

It was brought by Louise Carter both personally and as the representative of her late mother Monica Carter.

Clarion appealed against the County Court’s decision to dismiss its claim for possession of a property occupied by Ms Carter in Norwich,

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The county court had decided that Ms Carter became an assured tenant of the property in equity on her mother's death in June 2017.

Five grounds of challenge were advanced by Clarion to the judge's decision that a notice to quit served on Ms Carter after her mother's death was invalid and did not terminate the tenancy.

It also argued against a finding that a mandatory ground for possession, in Part 1 of Schedule 2 to the Housing Act 1988 was not open to Clarion and that the County Court had been wrong to hold that evicting Ms Carter would violate her rights under article 8 of the European Convention on Human Rights.

The late Ms Carter became a secure tenant of the property in 1987 and it passed through a number of social landlords as mergers took place ending up in Clarion’s ownership. Louisa Carter joined her there in October 2004 as her mother's carer.

Monica Carter died intestate in 2017 and Louisa Carter asked Clarion if she could buy the property. Clarion refused and also served a notice to quit.

Clarion argued there was no right of statutory succession as Ms Carter did not fulfil the criteria for a succession under the terms of the tenancy.

Ms Carter argued she had an inchoate right to establish title to the tenancy pending her appointment as a personal representative of her mother.

She also submitted that even if that was wrong, her interest was sufficient to bring her within the wide definition of ‘tenant’ in section 45(1) of the 1988 Act, which “includes a sub-tenant any person deriving title under the original tenant or sub-tenant".

Kerr J said: “I have found this issue difficult. The point is moot, but in the end I am not quite persuaded.

“I can see the force of the proposition that equity should recognise the reality of the situation, which must be quite common: a family member and carer who is not a spouse or partner lives with the tenant until the latter dies intestate and then succeeds to the tenancy without any concern about the hiatus while the Public Trustee bears responsibility for the intestate former tenant's estate.

“The difficulty only arises here because the tenancy predates the amendments made in the 2011 Act.”

He said Ms Carter's interest, “whether it is called an inchoate right or a chose in action or a putative or nascent equitable interest, is too weak to count as a tenancy in equity”.

Dismissing Clarion’s appeal though in proceedings that, “proved to be a complicated set of issues” Kerr J found the case was “one where the equitable exception to the doctrine of privity of contract is made out.

"I reach that conclusion with no regrets or misgivings. The qualifying successors' equitable right to enforce the succession terms provides an antidote to what would otherwise be an unjust lacuna during the ‘limbo’ period while the Public Trustee holds the legal title to the tenancy.”

Mark Smulian

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