October 2010
Introduction
This review discusses recent possession case law updates with different conflicts in relation to
obtaining the possession orders including: survivorship, domestic abuse, employment and mesne
profits, travellers sites and ‘month to month’ occupancy agreements.
Contents
Survivorship cases
Domestic abuse case
Employment and mesne profits case
Travellers site case
‘Month to month’ occupancy agreement case
Editors
Sarah Mansfield
Partner, BLM Liverpool
sarah.mansfield@blm-law.com
Survivorship cases
Sheffield City Council v (1) Personal Representative of June Wall (2) Steven
Wall (3) Robert Ingham (4) Theresa June Butler (2010)
Facts
Mr Wall, appellant (2), appealed against a decision dismissing his claim for possession of a property
owned by the respondent local authority. Mr Ingham and Ms Butler tenants (3 and 4) in the underlying
action cross-appealed against a decision dismissing their application for costs against the local
authority. 2’s foster mother June Wall (1) had been granted a secure tenancy by the local authority in
1986. Mr W (2) had been fostered by Ms W (1) from the age of six months and had resided in the
property with her. Ms W (1) died and the local authority served a notice to quit and issued a claim for
possession. The judge granted possession and held that the local authority was estopped from
denying that Mr W (2) was a member of Ms W’s (1) family for the purposes of the Housing Act 1985
s113 but that Mr W (2) had not resided in the property for the 12 months prior to Ms W’s (1) death. Mr
W (2) appealed but did not seek a stay of execution and vacated the premises as ordered. The
property was re-let to Mr I (3) and Ms B (4). The Court of Appeal set aside the possession order and
remitted the matter for rehearing, urging the parties to explore the possibilities of compromise. No
settlement was possible and Mr W (2) applied to have the matter restored.
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The local authority changed its position and informed Mr W (2) that it no longer disputed his assertion
that he satisfied the residence requirement for succession. Mr W (2) applied to join Mr I (3) and Ms B
(4) and issued his own claim for possession against them. The judge dismissed the local authority’s
claim for possession but also dismissed Mr W’s (2) claim for possession against Mr I (3) and Ms B (4).
Mr W (2) submitted that he was qualified to succeed the tenancy on the ground that he fell within the
meaning of ‘another member of the tenants family’ for the purposes of s87 and s113 read together with
European Convention on Human Rights 1950 article 8 and article 14.
Held
(1) If the question depended only on the construction of s87 the Mr W (2) as Ms W’s (1) de facto
adopted son, was undoubtedly a member of her family, Brock v Wollams (1949) KB 388 CA, applied.
However, the Act did not define members of a person’s family. A person was a member of another’s
family if he was that person’s child, which was an obvious inclusion, but s113(2) narrowed the meaning
of the words in s113(1)(b) and placed a heavy emphasis on the blood relationship. Significantly the
meaning ‘child’ was expanded to include a step-child and illegitimate child but it did not include a foster
child. The word child had to be limited to the closed categories stipulated in s113(2).
(2) There was no doubt that Mr W’s (2) article 8 rights were engaged. However, the exclusion of foster
children from the legislation was objectively justified and the legislation was compatible with Mr W’s (2)
Convention rights, R (on the application of Gangera) v Hounslow LBC (2003) EWHC 794 (Admin),
(2003) HLR 68 applied.
(3) There was no good reason why the local authority should be ordered to pay Mr I (3) and Ms B’s (4)
costs rather than Mr W (2).
What does this mean for landlords?
A foster child is not entitled to succession of the title of a LA property following the death of his foster
mother who was a secure tenant, as a member of the family is given a strict interpretation to include
only adopted, step and illegitimate children but not foster children. So, proper enquiries need to be
made regarding the status of all children at a property, following an application to succeed to a tenancy
by a child or the original tenant.
Solihull Metropolitan Borough Council v Elaine Hickin (2010)
Facts
The appellant local authority appealed against a decision that the respondent (H) was a secure tenant
and the local authority was not entitled to possession. The local authority had let a property to H’s
mother and father (X and Y) in 1980. In 2001 their marriage failed and Y left the property. X and H
continued to reside in the property. Following X’s death the local authority served a notice to quit on H
and then issued proceedings for possession. At the hearing the local authority contended that the
tenancy was jointly held by X and Y and on the death of X it became vested in Y by the doctrine of
survivorship, and, as Y did not reside in the property, the tenancy was not a secure tenancy and could
be brought to an end by service of a notice to quit. At first instance the local authority’s view was
upheld but, on appeal, the judge held that H was the secure tenant and the local authority was not
entitled to possession. H contended that the Housing Act 1985 s89(1) was engaged as X was a secure
tenant who died and the tenancy in question was a periodic tenancy. H submitted that under s89(2)
she was ‘a person qualified to succeed the tenant’ and, accordingly, the tenancy vested in her.
Held
On the death of X, the tenancy of the house vested in Y by virtue of the doctrine of survivorship,
Walker v Birmingham City Council (2007) UKHL 22, (2007) 2 AC 262 considered. Y did not reside in
the property and consequently the tenancy ceased to be a secure tenancy and was therefore
effectively determined by the notice. H was neither entitled to succeed to the tenancy nor to remain in
the house once the notice had expired. Whilst the construction put forward by H produced a
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satisfactory result on the facts of the instant case, it could produce extraordinary results in other
circumstances. For example, if two women, each with a child, were granted a joint tenancy, on the
death of one woman, on the basis of H’s contention, the tenancy would vest in her child and the
surviving secure tenant would be divested of her interest, The Act could not have intended such a
result. Departing from the strict application of the doctrine of joint tenancy when construing the
provisions of Part IV would produce an unreasonable result.
What does this mean for landlords?
When a joint tenant leaves a property, it would be sensible to assist the remaining tenant with severing
the joint tenancy, otherwise the law of survivorship prevails and on the death of one tenant the tenancy
vests in the other.
If the remaining joint tenant no longer resides there, they are not using it as their main home and
security of tenancy is broken.
Austin v Southwark LBC (2010)
Facts
Alan Austin was granted a secure tenancy in 1983. In 1986, as a result of rent arrears, Southwark
brought a possession claim. In 1987, a suspended possession order was made, but Alan Austin
defaulted and became a tolerated trespasser. His brother, Barry Austin, went to live with him in 2003.
Alan Austin later died and Southwark brought a new possession claim against Barry Austin. He made
an application under Civil Procedure Rules (CPR) Part 19 to be joined as a party to the earlier
possession claim, to represent the estate of his brother and retrospectively postpone the date for
possession so that he would be entitled to succeed the tenancy under HA 1985 s87(b). HHJ
Welchman dismissed the application. Following Brent LBC v Knightley [1997] EWCA Civ 917; (1997)
29 HLR 857, he held that the right to apply for a postponement of an order for possession under HA
1985 s85 was not an interest in land which was capable of being inherited. Any right ceased on the
brother’s death. Barry Austin appealed, first to the High Court and then to the Court of Appeal. Both
appeals were dismissed. He appealed further to the Supreme Court, arguing that:


A secure tenancy does not end on breach of a conditional suspended possession order but
endures until the possession is executed; and, alternatively,
A tenant’s statutory right to apply to postpone the date for possession, and thus revive the
secure tenancy, survives his/her death and passes to the estate of the deceased former
tenant.
Held
The Supreme Court unanimously allowed the appeal. In relation to the first argument, there were ‘very
good reasons for accepting that the law as declared in [Thompson v Elmbridge BC [1987] 1 WLR
1425, CA], however unsatisfactory it can now be seen to be, should not be disturbed’. In relation to the
second argument, Lord Hope pointed out that the powers contained in s85(2) are exercisable ‘at any
time before the execution of the order’. ‘The possibility that the tenant may have died in the meantime
is not mentioned. If it had been the intention that the powers should not be exercisable on the tenant’s
death it would have been easy to say so.’ Knightley was wrongly decided and should be overruled.
The fact that the former secure tenant died did not deprive the court of its jurisdiction to exercise the
power to postpone the date of possession under s85(2)(b). Barry Austin was able to represent the
estate of his brother and to apply under CPR 19.8 for the date of possession to be postponed.
What does this mean for landlords?
There is no longer any mileage in saying that a tenant who was previously a tolerated trespasser, even
with a suspended possession order against him, could not be considered as someone who has a
tenancy subject to succession rights. Unless a warrant to enforce possession is obtained, the tenancy
is subject to succession and survivorship rights as with any other secure tenancy.
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Domestic abuse case
Metropolitan Housing Trust v Djilali Hadjazi (2010)
Facts
The appellant housing association (M) appealed against a decision dismissing its claim for possession
of a property occupied by the respondent tenant (H). H had been granted a tenancy of the property
and lived there with his wife and children. There was a history of physical violence and threats by H
towards his family and in 2006 he left his wife. However, the violence continued and, in 2007, his wife
and children left the property on the advice of social services. H subsequently moved back into the
property. M sought possession on various grounds under the Housing Act 1988 schedule 2, including
ground 14A relating to domestic violence. The judge held that ground 14A only applied to the case of
violence, or threats of violence, proved against H while he and his wife were living in the property as a
couple and, as such, it did not apply to the instant case as the effective violence and threats occurred
after they had ceased to live together. The judge further held that if he was wrong on that construction
of ground 14A he would have concluded that it would not have been reasonable to make an outright
possession order. M contended that the judge erred in law in the way he interpreted and applied
ground 14A.
Held
(1) There was nothing ambiguous about either the concept or the wording of ground 14A which could
properly attract a principle of interpretation favouring the party to a marriage, or equivalent relationship,
who had been violent or threatening towards the other party to the relationship thereby causing the
other party to leave the property in which they had lived together. The fact that the wording of ground
14A used the past tense did not support the construction applied by the judge. The use of the past
tense did not expressly or impliedly require the parties to the relationship to be living together as a
couple at the date of the causative violence or at the date of relevant triggering event. Ground 14A
covered the facts found by the judge; the property was occupied by H and his wife as a married couple
with H as the tenant of the property; he was violent towards, and threatened violence to, his wife and
children; they separated when he left and the violence continued; H’s wife and children left the
property as a result of the continuing violence and threats. The judge’s construction defied common
sense. There was no reason why the timing of departure from the property by the victim of the violence
should make any difference to the availability of that ground of possession to the landlord.
(2) On the question as to whether it would have been reasonable to make a possession order, the
judge’s remarks on reasonableness were made in the context of an erroneous approach by him to the
construction and application of ground 14A. Accordingly, the matter had to be remitted for reconsideration in light of the instant decision.
What does this mean for landlords?
Evidence of anti-social behaviour due to domestic abuse is relevant at all stages of the tenancy and is
not directly linked to all tenants being present at the property during the abuse. This case shows that
even if the abuser has left the property at the time of the abuse, upon their return, possession can still
be obtained on the grounds of that abuse under ground 14A of the Housing Act 1988 schedule 2. Any
other decision would mean that the domestic violence provisions would fail to provide the protection
intended.
Employment and mesne profits case
Shi v Jiangsu Native Produce Import & Export Corp (2009)
Facts
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Mr Shi was employed by the defendant company. He was also given a bare licence to occupy
premises. Mr Shi sued for arrears of salary. The company then terminated his licence and
counterclaimed in the court proceedings for mesne profits. There was a joint experts’ report from a
valuer which stated that the rental value of the property for the appropriate period was £114,345. HHJ
Ryland dismissed the claim for arrears of salary and the counterclaim for mesne profits, holding that
there were exceptional circumstances. Both parties appealed.
The Court of Appeal dismissed Mr Shi’s appeal, but allowed the employer’s cross-appeal. After the
licence was terminated, Mr Shi remained in possession as a trespasser. After considering Ministry of
Defence v Ashman [1993] 25 HLR 514, Ministry of Defence v Thompson [1993] 25 HLR 552 and
Swordheath Properties Ltd v Tabet [1979] 1 WLR 285, Dyson LJ said that the judge has assessed
mesne profits as if the employer was claiming in restitution whereas the counterclaim clearly pleaded
the claim as on for damages. It followed that the foundation for the judge’s conclusion that there were
exceptional or special circumstances which justified assessing the mesne profits at nil did not exist.
The mesne profits should have been assessed in a sum representing the loss suffered by the
employer as a result of being deprived by Mr Shi of vacant possession of the property. There was no
reason not to assess damages in the sum of £114,345 in line with the experts’ report. Even if the claim
had been advanced in restitution, there were no special circumstances which would justify a reduction
from the open market rental value. The value to Mr Shi would not have been less than it would be to a
typical potential occupant of the premises. He did have the choice of moving to other accommodation.
The fact that he remained an employee was not a relevant special circumstance.
What does this mean for landlords?
This case shows that it would take exceptional or special circumstances to deprive a landlord of being
able to reclaim mesne profits that they would be entitled to in the usual way. If the occupier could and
indeed should move to an alternative property, then the landlord would have the right to claim mesne
profits from the date that the lease was terminated up until the date that possession was relinquished.
Travellers site case
Brent London Borough Council v (1) Margaret Corcoran (2) Ann O’Donnell
(2010)
Facts
The appellant local authority appealed against the suspension of possession orders against the
respondents (D), and D cross-appealed against the making of the possession orders. The local
authority had granted D licenses to occupy pitches on a traveller site, which prohibited D from parking
more than one vehicle on each pitch, causing harassment to local authority staff or others, and using
the pitch for selling or supplying drugs. A police raid discovered that D’s son and nephew were using
additional caravans on the pitches for selling or supplying drugs. The local authority served termination
notices and, after D failed to leave, began possession proceedings. The judge rejected D’s public law
defences and possession orders were granted, but adjourned the decision on whether enforcement
should be suspended. After the possession hearing there was an incident involving D during which
local authority agents were harassed on the site. At the adjourned hearing the judge found no
evidence that D knew of the criminal activity, but he did not find their evidence particularly convincing,
the harassment was regrettable but did not on its own justify an outright order, and that the cause of
the trouble, namely D’s son and nephew, had been removed. Exercising his discretion under the
Caravan Sites Act 1968 s4 he suspended the orders for 12 months on the basis of undertakings that
D’s son and nephew would not be allowed to return. D argued that the local authority had failed to take
into account its duties to eliminate racial and disability discrimination by failing to carry out an
assessment before serving the termination notice. The local authority argued that when granting
suspension the judge had wrongly assumed that the local authority had the burden of proving that D
knew of the criminal activity, and that he failed to take into account the very serious nature of the
breaches.
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Held
(1) Faced with severe breaches of the licences, which included criminality and had nothing to do with
race or a particular racial group, the local authority was not required to consider the need to eliminate
racial discrimination; such considerations did not arise. In relation to disability discrimination, it was not
obvious that the consequences of a clear and serious breach of a licence could be escaped because
there was an old and terminally ill person on the site. That was only relevant when considering
suspending the order.
(2) The judge appeared to consider that he made the possession order because of the serious criminal
breaches rather than because the local authority was entitled to an order once it has lawfully
determined the licences. In exercising his discretion he had erred by disregarding, or at least
downgrading, the serious breaches in relation to criminal activity on the erroneous supposition that
they had already been taken into account. He also made an error of principle in failing to recognise the
serious nature of the harassment incident which showed that, despite knowing that the adjourned
hearing was still to be heard, D was prepared to breach the licence. The judge’s exercise of discretion
was flawed and the instant court would exercise the discretion afresh. The judge had not made a clear
finding about D’s knowledge, so it was to be assumed that D had no knowledge of the criminal activity.
However, they were in knowing and deliberate breach by allowing extra caravans and taking part in
harassment. Those who had the benefit of licences for traveller sites, which were in short supply, could
not expect to keep them if they conducted themselves as D did, even though they had lived at the site
for many years, Bristol City Council v Mousah (1998) 30 HLR 32 CA (Civ Div) applied. An immediate
possession order was made.
What does this mean for landlords?
Once the terms of a licence have been breached a landlord has the option to then seek possession as
long as the breaches are of a serious enough nature. In this case even though D could argue that they
did not know of the drug offences they obviously knew the extra caravans were on the site and
obviously breaching the licence. Whether this alone would have been enough for possession if
knowledge of the drug offences was not proven it would be difficult to say. However, the seriousness
of the harassment and possibly even more so the timing, during the period awaiting the adjourned
hearing, was more than enough for the judge to grant the possession order.
‘Month to month’ occupancy agreement case
Ruza Berrisford v Mexfield Housing Co-Operative Ltd (2010)
Facts
The appellant tenant (B) appealed against a decision ((2009) EWHC 2392, (2009) 41 EG 115 (CS))
that the respondent landlord was entitled to bring her tenancy to an end by service of a month’s notice
of quit. M was a fully mutual housing association under the Housing Associations Act 1985 s1(2) and
the Housing Act 1988 s45(1). M’s status meant that it could not create an assured tenancy, or a secure
tenancy, and its tenants or members had no statutory protection against eviction, except under the
Protection from Eviction Act 1977 s3, M had entered into a month to month ‘occupancy agreement’
with B under which, by clause 6, it agreed that it could not bring the agreement to an end unless B fell
into arrears or committed a breach of the agreement. M served B with a month’s notice to quit, even
though B was not in arrears at that time and had not breached the agreement. The court was required
to determine whether M was entitled to bring the tenancy to an end in those circumstances, given the
contents of clause 6. M relied on Prudential Assurance Co Ltd v London Residuary Body (1992) 2 AC
386 HL, and argued that the occupancy agreement was void for uncertainty, because of the effect of
clause 6 on the term, and B therefore had an implied tenancy by conduct which could be validly
determined by a notice to quit. B submitted that although the effect of Prudential was that, at common
law, the tenancy was void, equity prevented M as the original contracting party from seeking
possession in breach of clause 6 of the contract.
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Held
(Wilson LJ dissenting) (1) A lease or tenancy agreement served a dual purpose: it recorded a contract
between the original parties who were landlord and tenant, and it created an interest in land for the
tenant which was transferable. It was well established that the commencement of a lease and the
maximum duration of its term had to be certain, or capable of being rendered certain, before the lease
took effect. B accepted that the terms of clause 6 made the maximum term of the proposed lease
uncertain. The question therefore arose as to whether the contract purporting to grant a lease survived
independently of the failed lease so that the contract could be enforced as between the original parties
using an equitable remedy.
(2) If the object of the original contract between the parties was to create an interest in land, and that
object was not achievable at law because the interest would be of an uncertain term, then law nor
equity should be able to enforce the contract between the original parties. As a matter of principle it
was illogical and unsound to suggest that a contract which aimed to grant an interest in land, and
which grant failed, could nevertheless survive as a separate and free-standing contract which could be
enforced as if it were the failed lease, Prudential applied. The cases cited in support of B’s argument
didn’t support the bare proposition that equity would enforce the contract where the tenancy was void
as a lease for uncertainty, Walsh v Lonsdale (1882) LR 21 Ch D 9 CA, Parker v Taswell 44 ER 1106
Ct of Chancery, Browne v Warner 33 ER 480 Ct of Chancery, King’s Leasehold Estates, Re (1873) LR
Eq 521 Ct of Chancery and Siew Soon Wah (alias Siew Pooi Yong) v Yong Tong Hong (1973) AC 836
PC (Mal) considered. It was not possible to argue that the occupancy agreement should take effect as
a contractual licence as neither party had intended it as a licence, Lace v Chantler (1944) KB 368 CA
followed.
(3) The court did not reach its conclusion with enthusiasm as it was clear what the parties had
intended to contract. However, it was equeally clear that the rule about certainty of term could not be
fulfilled in the instant case. It was time that the rule was re-examined by Parliament.
(4) (Per Wilson LJ) The proper analysis of this case was as follows: clause 6 rendered the maximum
term of the tenancy uncertain and the tenancy was therefore void; the only tenancy between the
parties was a tenancy of the property from month to month, thus determinable by the notice to quit
served by M; in the event of service of a notice to quit, B had a right to specific performance of the
occupancy agreement. B did not need to establish detrimental reliance, because, having provided
consideration for the agreement, equity would have ordered specific performance of clause 6, Browne,
Parker, King’s Leasehold Estates, Zimbler v Abrahams (1903) 1 KB 577 CA and Siew Soon Wah
considered.
Possession granted.
What does this mean for landlords?
Certainty within a lease demonstrated by a fixed time period within a lease is essential, otherwise the
lease will be void due to uncertainty within provision of the lease. This case shows that a clause similar
to that of the aforementioned clause 6 determines that there is no limit to the lease, so it can only be
ended upon breach of that clause and therefore no fixed limit present. Whether this will be reviewed by
Parliament remains to be seen but the HA in this case should consider themselves lucky to have
obtained possession considering they breached their own lease in seeking possession before a breach
of clause 6 had occurred. They managed to achieve possession based on a technicality in the law, not
because their decision to seek possession was the correct one.
If you have any further questions on the content, please contact one of the editor(s).
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