Possession claims update Giles Peaker 24 March 2014

Article 8 – Introductory tenancies Southend-on-Sea BC v Armour [2014] EWCA Civ 231 Court of Appeal upheld first instance decision and first appeal. Initial instances of nuisance due to mental health condition, but no instances after service of notice. Behaviour between decision to evict and possession hearing is relevant to whether eviction is proportionate (contra West Kent Housing Association v Haycraft [2012] EWCA Civ 276?) Appellate court should be slow to interfere with a decision of a trial judge that an eviction would be disproportionate unless it was a decision that was not open to them on the evidence. On the Introductory Tenancy scheme and proportionality… 2

Article 8 – Introductory tenancies 3 [30]… Where, as here, the tenant under an introductory tenancy gets off to a shaky start, but mends his ways for almost all of the one year period, I consider that that improvement in behaviour is capable of being a factor in deciding whether it is disproportionate for the landlord to continue to insist on recovering possession. What weight to give it is a question for the trial judge.

Article 8 and private landlord 4 Argument is that court as public body is under duty to consider whether making possession order is proportionate. No definite decision. But two trespasser cases are suggestive. Malik v Fassenfelt & Ors [2013] EWCA Civ 798 The Heathrow case. First instance Judge accepted Article 8 could potentially apply. Court of Appeal declined to address the issue, but Sir Alan Ward’s judgment did find Article 8 engaged (and rule in McPhail that court could not extend time on possession order for trespassers could no longer stand) Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (Ch) found that Article 8 wasn’t engaged on the facts of the case, but could in principle.

Article 8 and private landlord 5 In practice, in a private sector possession case, under s.21 procedure, would have to be a very high threshold for Art 8 defence. Balancing of competing rights – tenant’s Art 8 rights and Landlord’s Art 1 Protocol 1 rights to property. Question not just whether eviction proportionate based on tenant’s circumstances, but whether this is sufficiently disproportionate to overcome A1 P1 right, such that it is not disproportionate to deprive landlord. Possible cases? Particularly bad retaliatory eviction? With a vulnerable tenant? Clear and overt discrimination?

Arrears and bedroom tax 6 Considering from position of defending possession claims where significant proportion of arrears due to bedroom tax. ‘1996 exemption’. Closed on 3 March 2014 – but still covers April 2013 to 3 March Continuous occupation of same property (or successor) since 1 January (See flowchart) Councils will have had difficulty establishing entitlement, particularly for successors. Always worth checking.

Arrears and bedroom tax 7 Other defences? Problem of reasonableness – no realistic prospect of reducing arrears. What if landlord is also benefit authority? Possible public law defence? Has the benefit authority correctly assessed number of bedrooms? Room size (ref Housing Act 1985 Part X). Room use? (highly speculative) Issues– has this previously been raised with benefit authority? Article 14 disability discrimination- probably hopeless after MA & Ors in Court of Appeal

Flexible tenancies. A game of forfeits 8 Procedure for ending a flexible tenancy at end of fixed term is at s.107D Housing Act This has no application during the fixed term. Usual Schedule 2 grounds apply. But, as this is fixed term, not period… S.82(3)&(4) HA 1985 mean that on a possession claim, court may make an order ending the fixed term, but the procedure otherwise incorporates s.146 Law of property Act 1925 (except 146(4)) and “any other enactment or rule of law relating to forfeiture”. More details at forfeit/ (copy enclosed) forfeit/

Giles Peaker