Plaster, possession and proportionality

Transcription

1 Plaster, possession and proportionality A housing case law up-date Dean Underwood Barrister

2 Topics covered Key cases in housing law : 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

3 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

4 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 focus on enduring intention, not fleeting changes of mind Permission to appeal to Supreme Court refused

5 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

6 Lappin v Surace Romford County Court, 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

7 Gladehurst Properties Ltd v Hashemi [2011] HLR 36 Protection of tenancy deposits Requirements of sections 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

8 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

9 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

10 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

11 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

12 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

13 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

14 Plaster, possession and proportionality A housing case law up-date Dean Underwood Barrister