Social Housing Newsletter – November 2011

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Case law update

As consultations and legislation have stolen the housing law headlines over the last year, here is a rundown of some of the court decisions which have been handed down over the past 12 months.

Birmingham County Council v Harrison [2011]
Saxon Weald Homes Limited v Chadwick [2011]
Rochdale BC v Dixon [2011]
Manchester CC v Ofodile [2011]

Birmingham County Council v Harrison [2011]

Birmingham County Council sought a possession order against Mr Harrison due to serious allegations of anti-social behaviour. An outright possession order was made.

Despite admitting many allegations, Mr Harrison applied for permission to appeal the outright possession order made against him arguing that a postponed possession order would be more appropriate given the conduct of his landlord and his neighbours. The trial judge had decided that the Defendant’s conduct was serious and dangerous and that an injunction would not provide enough protection for the Defendant’s neighbours.

Permission to appeal was refuse. The trial judge had addressed the issues raised by Mr Harrison and fairly weighed up all of the evidence before him in considering the reasonableness and proportionality of his decision to make an outright order.

Saxon Weald Homes Limited v Chadwick [2011]

In this case the landlord granted to the tenant a starter tenancy agreement. The tenancy agreement stated that the agreement was an assured shorthold tenancy for the first 12 months and, if at the end of the tenancy the landlord had not taken steps to terminate it, the tenancy would automatically convert into an assured non-shorthold periodic tenancy.

The landlord served a Notice of Seeking Possession (under section 8 of the Housing Act 1988) and a Section 21 notice only days before the 12 month anniversary of the commencement of the tenancy. The landlord then sent a letter to the tenant on the date of the anniversary of the commencement of the tenancy confirming that the tenant was now an assured tenant. The landlord commenced with possession proceedings on the basis that the tenancy was an assured shorthold tenancy.

The tenant defended the possession proceedings arguing that the tenancy had now converted to an assured non-shorthold tenancy. The matter eventually came before the Court of Appeal to consider whether the letter sent by the landlord constituted notice under paragraph 2 of schedule 2A of the 1988 Act to convert the tenancy into a non-shorthold tenancy.

The Court of Appeal held that the letter did constitute such notice despite the section 8 and section 21 notices served before the letter was sent out. The tenancy had become an assured non-shorthold tenancy.

The Court of Appeal appeared to accept that there is room for debate on the issue of whether an assured shorthold tenancy can be automatically converted into an assured non-shorthold tenancy by a contractual provision in the tenancy agreement, as is commonplace within the drafting of many starter tenancies. The Court of Appeal held that this issue was not relevant in this particular case as the letter had given notice confirming that the tenancy was now an assured non-shorthold tenancy. Whilst it seems unlikely that a court would be unwilling to uphold the validity of such clause at the detriment of a tenant, it is advisable to confirm the conversion of the tenancy in writing to avoid any uncertainty.

Rochdale BC v Dixon [2011]

Mr Dixon appealed a conditional postponed possession order obtained on rent arrears grounds after he deliberately withheld payment of water charges which were charged in addition to his rent.

He appealed arguing that the collection of water charged was beyond the powers of the council, his tenancy agreement had not been varied properly to entitle the council to collect the charge and his new tenancy terms were unfair thereby making the possession order unreasonable.

The appeal was dismissed by the Court of Appeal upholding the validity of the agreement between the Council and the water company to collect water charges from their tenants under a term of their standard tenancy agreement. The Court also held that the variation notice served by the Council under s.103(2) of the  Housing Act 1985 was valid even though it did not expressly warn that once the obligation to pay water charges was included in the tenancy agreement the tenant could be evicted for non-payment of water charges.

The Court of Appeal held that the obligation to pay a water charge to the Council was not an unfair term under the Unfair Terms in Consumer Contracts

Regulations 1999.

Manchester CC v Ofodile [2011]

Manchester City Council discovered that Mr Ofodile had a second home. A notice to quit was served on the basis that Mr Ofodile had lost his security of tenure as he no longer occupied the property rented to him by Manchester City Council as his “only or principal home”, as it required by Section 81 of the Housing Act 1985.

At a hearing in the County Court the Judge made a possession order. He took the view that security of tenure had been lost. Mr Ofodile asked for permission to appeal to the Court of Appeal.

Permission to appeal was refused. The appeal court found that where a person had two homes it was for the District Judge to decide which of the two homes was his principal home. Unless the District Judge had reached a decision that no reasonable Judge would have reached on the facts or had failed to take into account a relevant factor or taken into account an irrelevant one, there was no prospect of a successful appeal.