Plaster, possession and proportionality A housing case law up-date Dean Underwood Barrister Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Topics covered • Key cases in housing law : 2011-2012 • Implied repair covenants: responsibility for plasterwork • Loss of security: ‘only or principal home’? • Succession and survivorship: statutory -v- common law rights • Statutory, periodic assured shorthold tenancies: when do they start? • Tenancy deposit penalties: limits on the court’s powers • Human rights defences to possession claims • Ending joint tenancies: the rule in Hammersmith LBC v Monk • Appeals against possession orders made on grounds of ASB • Sentencing for contempt: guidelines for breach of ASBIs Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Grand v Gill [2011] 1 WLR 2253; [2011] HLR 37 • Plaster applied to walls and ceilings • Section 11, Landlord and Tenant Act 1985 • Covenant to ‘keep in repair the structure and exterior…’ • Irvine’s Estate v Moran (1992) 24 HLR 1 overruled • Not a decorative finish: part of the structure • Landlord responsible for repair of defective plaster Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Islington LBC v Boyle [2012] HLR 18 • Security of tenure • Section 81, Housing Act 1985; see also section 1, Housing Act 1988 • ‘only or principal home’: a principled approach • issue of fact, determined in light of all available evidence • rebuttable presumption that security lost • subjective intention to return not sufficient: need for objective corroboration • f ocus on enduring intention, not ‘fleeting changes of mind’ • Permission to appeal to Supreme Court refused Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Solihull MBC v Hickin [2012] 1 WLR 2295 • Secure tenancy granted jointly to Mr and Mrs H • Mr H left; Mrs H died leaving daughter, E, in occupation • S served notice to quit on Mr H • E defended possession claim on the basis that • she had a right to succeed her mother as tenant - section 89, Housing Act 1985 • that right displaced Mr H’s common law right to the tenancy by survivorship • Supreme Court disagreed: • Mr H had become sole tenant by operation of the common law of survivorship • Mr H no longer occupied the property as his only or principal home • The notice served on him was therefore effective to end his tenancy Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Lappin v Surace Romford County Court, 13.06.12 • Assured shorthold tenancy • End of fixed term • Section 5, Housing Act 1988 • Statutory, periodic assured shorthold tenancy • Calculating the correct start and end of the period • Notice under section 21, Housing Act 1988 Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Gladehurst Properties Ltd v Hashemi [2011] HLR 36 • Protection of tenancy deposits • Requirements of sections 212-215 Housing Act 2004 • Landlord’s failure to comply • Court’s power to award damages for 3 x value of deposit • Power coterminous with tenancy • Section 214 amended by Localism Act 2011, section 184 Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Corby BC v Scott - West Kent HA v Haycraft [2012] HLR 23 • Introductory and ‘starter’ tenancies • Complaints: rent arrears and anti-social behaviour • Possession claims met with human rights defence: Article 8 • Application of: • Manchester CC v Pinnock [2010] 3 WLR 1441 • Hounslow LBC v Powell [2011] 2 AC 186 • Confirmation of: • high threshold for seriously arguable defence • importance of summary dismissal of below-threshold defences Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Riverside Group Ltd v Thomas [2012] EWHC169 (QB) • Starter tenancy granted to vulnerable tenant • Complaints of anti-social behaviour • Possession claim met with human rights defence: Article 8 • Application of Pinnock and Powell • Confirmation: • of high threshold for seriously arguable defence • of important policy reasons for use of starter tenancies and quick termination • that section 89, Housing Act 1980 not incompatible with Article 8 Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Birmingham CC v Lloyd [2012] 2 P&CR DG18 • L moved into brother’s flat when brother died • L then ended his own tenancy of other accommodation • B’s possession claim met with human rights defence: Article 8 • Court of Appeal allowed appeal against refusal of possession • L was a trespasser and always had been • Effect of refusal had been to usurp B’s role in allocating housing • Pinnock , Powell and Corby applied Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Sims v Dacorum BC [2012] EWCA Civ … • Joint tenancies • Termination by notice to quit served by one tenant only • Common law rule in Hammersmith LBC v Monk [1992] 1 AC 478 • Whether rule compatible with Article 8 and Article 1, Protocol 1 • Proposed development of common law: • Treat NTQ as a release of one tenant’s interest to the other? • Treat service of the notice as the ‘function’ of a trustee? • Judgment reserved: watch this space Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Friendship C.H.A. v Begum [2011] EWCA Civ 1807 • Assured tenancy: couple with 7 children • Conviction for intent to supply drugs leading to possession claim • Appeal against outright possession order • Sandwell MBC v Hensley [2008] HLR 22 applied • No point suspending when inevitable outcome would be breach • Must be cogent evidence that past conduct will cease • Court entitled to assume that local authority would comply with duties owed to children Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Amicus Horizon Ltd v Thorley [2012] EWCA Civ 817 • Anti-social behaviour injunction • Section 153A, Housing Act 1996 • Breach of injunction • Committal for contempt • Appropriateness of immediate custodial sentence • Sentencing Guidelines Council: Definitive Guideline for breach of ASBO Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
Plaster, possession and proportionality A housing case law up-date Dean Underwood Barrister Hardwicke Building, New Square, Lincoln’s Inn, London WC2A 3SB www.hardwicke.co.uk
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