Daniel Skinner and Natalie Hurst examine the latest housing-related cases in the Court of Appeal, High Court and Upper Tribunal.
London Borough of Croydon v Kalonga  EWHC 1353 (QB)
High Court, 2 June 2020
The High Court has held that a flexible tenancy for a fixed term cannot be determined before its expiry unless the landlord has included a forfeiture clause.
A landlord (London Borough of Croydon) brought a claim for possession against a tenant (Miss Kalonga) who had held a flexible tenancy for a fixed term of five years. Two years into the term, and due to rent arrears and anti-social behaviour, the London Borough of Croydon served notice on Miss Kalonga, seeking termination of the tenancy and possession under the Housing Act 1985. However, Miss Kalonga argued that a flexible tenancy could only be terminated by forfeiture and that there was no forfeiture clause in her tenancy agreement.
The High Court dismissed London Borough of Croydon ‘s claim for possession, finding that a flexible tenancy for a fixed term cannot be determined before the expiry of the fixed term for a tenant's breach, unless the landlord had the benefit of a forfeiture clause in the tenancy agreement.
The decision is a warning for local housing authorities that have adopted fixed term secure tenancies and not included a forfeiture or a break clause.
A copy of the judgment is here.
Triplerose Ltd v Beattie and another  UKUT 180 (LC)
Upper Tribunal (Lands Chamber), 27 May 2020
The Upper Tribunal (Lands Chamber) has held that the lessees of a flat let had breached a covenant restricting its use to a private dwelling when they advertised it for short-term lets.
The lessees (The Beatties) lived in a flat that had a long residential lease. When the couple relocated for work, they continued to live in the flat for two or three nights a week, but arranged for the flat to be advertised for short-term lets on the ‘Airbnb’ and ‘Booking.com’ websites on the days they were not using it. The Beatties appointed a company to deal with check-ins, check-outs and to arrange laundry services for the guests. However, the Beatties’ lease contained a covenant stipulating that the flat could not be used “for any purpose other than as a private dwelling-house for occupation by one family at any one time” and that the flat could not be used to carry out any trade or business.
The First-tier Tribunal found there had been no breach of the covenant, finding that the short-term occupation arrangements “did not amount to a breach of a covenant against carrying on or permitting to be carried on any trade or business upon the premises”. The Landlord (Triplerose Ltd) appealed.
The Upper Tribunal (Lands Chamber), in partially allowing the appeal, held that the Beatties were in breach of the covenant, as the guests who occupied the flat for short periods, after responding to website advertisements, were not using the flat as a private dwelling-house. The Tribunal, however, also held that there is a definite distinction between conducting business in a flat and simply using a flat for short-term residential purposes, albeit as part of a business (as the Beatties had done).
A copy of the judgment is here
London Borough of Hackney v Okoro  EWCA Civ 681
Court of Appeal, 27 May 2020
The Court of Appeal has ruled that the suspension of possession proceedings due to the COVID-19 pandemic applies to appeals as well as new cases.
Mr Okoro was a homeless person and had been given temporary accommodation by the London Borough of Hackney. Later, the London Borough of Hackney issued a claim for possession due to rent arrears. Mr Okoro was granted permission to appeal on 25 February 2020 and the possession order was stayed. The appeal was due to be heard on 21 May 2020, but on 27 March 2020, Practice Direction 51Z came into effect and imposed an automatic stay of 90 days on all possession proceedings under Part 55 of the Civil Procedure Rules (CPR 55), in response to the COVID-19 pandemic. The appeal was stayed but London Borough of Hackney contended that an appeal against a possession order was not subject to the stay under Practice Direction 51Z because appeals were governed by Civil Procedure Rule 52. Conversely, Mr Okoro argued that the automatic stay applied to appeals from possession orders that existed when the stay began.
The Court of Appeal held that the wording of Practice Direction 51Z did apply to appeals from possession orders that were in existence at the date it came into force. The wording “all proceedings brought under CPR Part 55” included appeals. Proceedings brought under CPR 55 are still ‘brought’ under it even when they are under appeal.
The decision will provide greater protection to tenants from eviction.
A copy of the judgment is here.
Vale of Aylesbury Housing Trust Ltd v Richens  EWHC 685 (Ch)
High Court, 20 March 2020
The High Court has held that a housing association had been unable to prove that it had not granted an inter-generational tenancy to a resident.
Mr Richens’ grandfather (Mr Townsend) was a sole tenant of a council house, owned by Aylesbury Borough Council. At the time when Vale of Aylesbury Housing Trust took over the Council’s housing stock in 2006, the property was also occupied by Mr Richens, who had been living there with his grandfather since he was 12, and his brother. In 2007, an assured shorthold tenancy was entered into between Vale of Aylesbury Housing Trust and Mr Townsend. Following, Mr Townsend’s death, Mr Richens was arrested for starting a fire in the kitchen of the property. Vale of Aylesbury Housing Trust was granted an anti-social behaviour order, precluding Mr Richens from returning to the property, and subsequently issued an application for possession.
Vale of Aylesbury Housing Trust said that it had not granted an inter-generational tenancy to Mr Richens and his brother. However, Mr Richens claimed that he, his brother, his mother and his sister had been present when a housing officer from the Trust had offered a joint tenancy to Mr Townsend and his two grandsons. Mr Richens provided a printed tenancy agreement, signed by him, his brother and Mr Townsend. However, Aylesbury Housing Trust could find no records of Mr Richens being a tenant or of the aforementioned meeting taking place. The County Court dismissed the claim for possession and Vale of Aylesbury Housing Trust appealed, contending that the Court had wrongly placed an evidential burden on it to disprove Mr Richens’ assertion that he had a joint tenancy.
The High Court, in dismissing the appeal, held that Vale of Aylesbury Housing Trust had failed to overcome the “high hurdle” in disputing a lower court’s finding of fact. It said that it had been “reasonable” for the County Court judge to reach the decision that she did, based on the balance of probabilities.
A copy of the judgment is here (taken from 42 Bedford Row Barristers’ website).
Flores, R (on the application of) v London Borough of Southwark  EWHC 1279 (Admin)
High Court, 20 May 2020
The High Court has held a local housing authority was entitled to find that a family had deliberately moved into accommodation that would become statutorily overcrowded.
Mr Flores, a Brazilian national, his partner and their two children lived in a one-bedroomed property. He applied to join London Borough of Southwark’s housing register, but was turned down as the family did not have a local connection. However, he was told to re-apply when Mr Flores’ partner had worked in the Borough for five years. When Mr Flores subsequently reapplied, the family were awarded ‘band three’ priority for housing. The family was deemed unqualified for ‘band 1’ as they had voluntarily moved into overcrowded accommodation (i.e. the one-bedroomed property). Mr Flores sought judicial review of this decision, arguing that London Borough of Southwark had failed to properly investigate the circumstances surrounding the family’s decision to move into the one-bedroomed property (i.e. that they could not afford a two-bedroomed property).
The High Court, in dismissing the application for judicial review, held that London Borough of Southwark’s allocations policy precluded ‘band one’ priority being given to anyone who was living in statutorily overcrowded accommodation due to a “deliberate act”. Since Mr Flores and his family had moved into a one-bedroom flat, knowing that it would be occupied by four people and that his children would get older and require more space, the property was overcrowded due to a “deliberate act”. The Court also held that there is a discretion on the housing officer as to how far it is necessary to investigate an applicant’s circumstances in order to reach a lawful decision.
The decision will be welcomed by local housing authorities, as it confirms that the housing officer dealing with a housing application can decide the extent of the investigations undertaken when determining an application. However, it is important to remember that this discretion could still be subject to judicial review if it has been exercised unlawfully.
A copy of the judgment is here.