Property

Yemshaw (Appellant) v London Borough of Hounslow (Respondent), [2011] UKSC 3, 26/01/2011

Fri, 11 Feb 2011 00:01:27 GMT

The issue in this case is what is meant by the word “violence” in section 177(1) of the Housing Act 1996. Is it limited to physical contact or does it include other forms of violent conduct?

In August 2008, the Appellant left the matrimonial home in which she lived with her husband, taking her two young children with her, and sought the help of the local housing authority. In interviews with housing officers, she complained of her husband’s behaviour, which included shouting in front of the children, and stated that she was scared that if she confronted him he might hit her. The officers decided that she was not homeless as her husband had never actually hit her or threatened to do so. On a review, the panel noted that the root cause of her homelessness was not that she had fled after a domestic incident. The panel believed the probability of domestic violence to be low. They concluded that it was reasonable for her to continue to occupy the matrimonial home. The Respondent local authority accepted that the housing officers and review panel had applied the Danesh meaning when deciding that the appellant was not homeless within the meaning of the 1996 Act.

The Supreme Court unanimously allows the appeal and sends the case back to be decided again by the local housing authority. Lady Hale gives the leading judgment. The Court holds that “domestic violence” in s. 177(1) of the 1996 Act includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.

Austin (FC) (Appellant) v. Mayor and Burgesses of the London Borough of Southwark (Respondent), [2010] UKSC 28

Thu, 24 Jun 2010 23:53:07 GMT

The Appellant’s brother, who is now deceased (“the Deceased”), held a secure tenancy under the Housing Act 1985 (“the 1985 Act”) of a property owned by the London Borough of Southwark (“the Authority”). The Appellant contends that he lived in his brother’s home for the 12 months preceding his death, caring for him during his terminal illness. The Appeal arises from the efforts of the Appellant to resist the Authority’s efforts to evict him from the property.

Secretary of State for Environment, Food and Rural Affairs (Respondent) v Meier and another (FC) (Appellant) and others and another (FC) (Appellant) and another [2009] UKSC 11

Tue, 02 Feb 2010 23:02:09 GMT

Supreme Court - Press Summary

BACKGROUND TO THE APPEAL
A number of travellers established an unauthorised camp in Hethfelton, one of the woods managed by the Forestry Commission and owned by the Secretary of State for Environment, Food and Rural Affairs.

The Secretary of State sought an order for possession in respect of Hethfelton and other specified woods (also managed by the Commission and owned by the Secretary of State) which had not yet been occupied by the defendants to the claim. The Secretary of State also sought an injunction against the same defendants restraining them from re-entering Hethfelton and from entering the other woods.

The Recorder before whom the claim came decided to grant an order for possession against the defendants in respect of Hethfelton, but not in respect of the other woods. The Recorder also refused to grant the injunction sought. The Court of Appeal allowed the Secretary of State’s appeal against the Recorder’s refusal to grant the order for possession in relation to the other woods and against his refusal to grant the injunction. The defendants appealed.

JUDGMENT
The Supreme Court unanimously allowed the defendants’ appeal to the extent of setting aside the wider possession order made by the Court of Appeal.

REASONS FOR THE JUDGMENT
· Two main questions were before the Supreme Court:
(1) Whether a court could grant an order for possession in respect of distinct land not yet occupied or possessed by a defendant.
(2) Whether a court should grant an injunction restraining a defendant from trespassing on other land not currently occupied by him.
· On the first main question, the Supreme Court unanimously agreed that a court could not make such an order. Lord Rodger considered that such an order would be inconsistent with the fundamental nature of an action for recovering land because there was nothing to recover (Para 12). Lord Neuberger, who agreed with Lord Rodger on this question, thought that it did not make sense to talk about a defendant being required to deliver up possession of land where the defendant did not occupy such land in any conceivable way, and the claimant enjoyed uninterrupted possession of it (Paras 64, 74 and 78). Lords Rodger, Walker, Neuberger and Collins all thought that the Court of Appeal in Secretary of State for the Environment, Food and Rural Affairs v Drury [2004] 1 W.L.R. 1906 had illegitimately extended the circumstances in which an order for possession could be made (Paras 5, 20, 72 and 96). Lady Hale’s main objection to extending an order for possession in respect of distinct land which had not actually been intruded upon was one of natural justice. According to Lady Hale, the main problem with the current form of the usual order was that it was not specifically tailored against known individuals who had already intruded upon the claimant’s land, were threatening to do so again, and had been given a proper opportunity to contest the order (Paras 38 and 40).
· On the second main question, Lord Rodger, Lady Hale and Lord Neuberger agreed that the majority in the Court of Appeal were right to grant an injunction in this case. Lord Neuberger, with whom Lord Rodger agreed on this question, noted that neither the Recorder nor the Court of Appeal had concluded that an injunction should be refused on the ground that it would not be enforced by imprisonment (because the defendants were vulnerable or had young children) or because it would have no real value (since travellers usually have few assets). The Court of Appeal had not erred in granting the injunction (Para 84). Lord Neuberger was also of the view that the failure by the Commission to comply with the “Guidance on Managing Unauthorised Camping” issued by the Office of the Deputy Prime Minister should not preclude the granting of an injunction to restrain travellers from trespassing on other land (Paras 87 and 91). Lady Hale thought that the more natural remedy to deal with separate land which had not yet been intruded upon was an injunction against that intrusion, and one should not be unduly hesitant in granting that (Para 39).

Further comments
· Observations were made to the effect that there may be a need for reform of the remedies available in this area (Paras 18, 40 and 94).

Transport for London (London Underground Limited) (Appellants) v Spirerose Limited (in Administration) (Respondents), [2009] UKHL 44

Thu, 27 Aug 2009 13:38:00 GMT

The issue for decision in this appeal relates to the basis on which compensation for compulsory purchase should be assessed in a case where the land in question has an unrealised potential for development but where the success of an application for the requisite planning permission is, although probable, not a certainty. More particularly, the issue is whether, in such a case, compensation should be assessed on the basis that planning permission for the development would be granted, or whether the amount that such an assessment would produce should be discounted to reflect the lack of certainty.

The Lands Tribunal and the Court of Appal held that where there would have been a possibility, but less than a probability, of planning permission, the land owner should have the benefit of hope value.

In rejecting the Court of Appeal’s conclusions, the House of Lords unanimously allowed the appeal. It held that the conclusion of the Court of Appeal undermined the principal conclusion that a finding of probability leads not to hope value but to valuation on an assumption that planning permission would certainly have been obtained. There was no basis in authority or in principle for the conclusion that it was open to the court in effect to establish an assumption that planning permission would be obtained, by analogy with the specific statutory rules which create the assumption.

Scottish & Newcastle plc (Original Respondents and Cross-appellants) v Raguz (Original Appellant and Cross-respondent), [2008] UKHL 65

Wed, 29 Oct 2008 16:18:00 GMT

Under common law, a tenant agrees to pay the rent in terms of a lease whether or not he has assigned the lease to someone else. This rule was changed by s.5(2) of the Landlord and Tenant (Covenants) Act 1995, which provides that if a tenant assigns the leased premises, he becomes released from his covenants. However, this change only applies to tenancies granted after the Act came into force in January 1996. The common law continues to apply to earlier tenancies, but subject to the restrictions contained in ss.17 – 20 of the 1995 Act.

s.17(2) states that the former tenant shall not be liable to pay the rent unless, within the period of 6 months beginning with the date when the charge becomes due, the landlord serves on the former tenant a notice informing him (1) that the charge is now due; and (2) that in respect of the charge, the landlord intends to recover from the former tenant the amount specified in the notice.

s.17(4) states that where the landlord has served a notice under s.17(2), the amount which the former tenant is liable to pay shall not exceed the amount specified in the notice unless -(a) his liability is subsequently determined to be for a greater amount, (b) the notice informed him of the possibility that the liability would be so determined.

Scottish and Newcastle (S&N) were the original tenants of premises under two leases dated 1967 and 1969. The leases contained provisions for rent review every 14 years. S&N assigned the leases to Mr Raguz who also assigned the leases. One of the assignees then defaulted on the rent. In 1999, the landlord served several s.17(2) notices on S&N who paid the arrears.

Rent reviews were commenced in 1995 and 1996. They were concluded in 2000 and 2001. The landlord then served further notices on S&N to recover the backdated increases. S&N paid the increased sums and sought to recover the sums from Mr Raguz. Mr Raguz argued that he was not liable to pay as S&N should not have paid the landlord. He argued that the notices should have been served within 6 months of the rent review dates in 1995 and 1996.

Therefore, the question in this case was whether, for the purposes of s.17(2), an increase under a rent review was to be treated retrospectively as having become due from the commencement of the rent review period, thereby triggering the six month period during which the landlord must serve a notice on the former tenant or lose the right to claim under the covenant.

Mr Raguz argued that the increased rent became due on the rent review date. S&N argued that the increased rent became due when it was agreed. The Court of Appeal held that the sums were due on the review date. This placed an administrative burden upon landlords who then had to serve notices within six months of each date that the rent fell due until a rent review had been agreed, even if the tenant was not in arrears. The Court of Appeal recognised the existence of this administrative burden but concluded that it was an "unintended anomaly of the legislation". S&N appealed.

The House of Lords unanimously allowed S&N’s appeal stating that the Court of Appeal’s decision was a "ridiculous conclusion”. It held that s.17 notices need only be served within 6 months of the outcome of the rent review.

Scottish & Newcastle Plc v Raguz [2008] UKHL 65 (29 October 2008)

Wed, 29 Oct 2008 00:00:00 GMT

An increase under a rent review for the purposes of the Landlord and Tenant (Covenants) Act 1995 was to be treated as having become due when the increase was agreed or determined, not when the rent review period commenced.

Gallagher (Valuation Officer) (Respondent) v Church of Jesus Christ of Latter-day Saints (Appellants), [2008] UKHL 56

Wed, 30 Jul 2008 20:08:00 GMT

This appeal concerns the assessability for non-domestic rating of a group of buildings belonging to the Church of Jesus Christ of Latter-Day Saints in Lancashire. The main building in this dispute is the Temple.

The Valuation Officer’s case is simple in that he says that the Temple is not a place of “public religious worship”, and therefore not exempt, because it is not open to the public. The right of entry is reserved to certain members of the Mormon Church called the Patrons.

The appellants argue that a “place of public religious worship” does not have to be open to the public. What is required is only “congregational worship”.

The House had already considered this question in a previous case (Church of the Jesus Christ of Later-Day Saints v. Henning (Valuation Officer) [1964] AC 240) in which it was held that the words “place of public religious worship” could not apply to places used for religious worship from which the public was excluded.

The House held that even though subsequent legislation had come into force since the 1964 case, it seemed inconceivable that Parliament did not intend the same phrase to carry the same meaning which it had been given in the Henning case. Consequently, the Henning case was conclusive against the appellants on this point.

The appellants also argue that a different construction is required by s.3 of the Human Rights Act 1988. The exclusion of all but the Patrons is a manifestation by the Mormons of their religion. Therefore, to deny them exemption on that ground would be to discriminate against them on grounds of religion, contrary to arts.9 and 14 of the Convention.

The House held that in order to discriminate on grounds of religion, the alleged discrimination must fall “within the ambit” of a right protected by art.9 – in this case the right to manifest one’s religion. In this case, the liability of the Temple to a non-domestic rate would not prevent the Mormons from manifesting their religion. Having said that, if the legislation imposed rates only upon the Mormons, the House would have regarded that as being within the ambit of art.9 even if the Mormons could easily afford to pay them. However, the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That is an entirely different matter.

Further, even if the case could be regarded as one of indirect discrimination, it was justified on the ground that Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation.

The Church’s alternative argument is that the Temple is a church hall or similar used in connection with another building which admitted the public and was accepted as a place of public worship. This argument was rejected on the grounds that the Temple was far too important in the life of the Mormon Church to be described as being similar to a church hall being used in connection with another building.

The House of Lords unanimously dismissed the appeal.

Doherty (FC) (Appellant) and others v Birmingham City Council (Respondents), [2008] UKHL 57

Wed, 30 Jul 2008 11:39:00 GMT

The question in this case is whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to an end. He has no enforceable right to remain there under English property law. But he claims that his removal would violate his rights under art.8 of the ECHR.

The respondent in this case asserted that it required vacant possession of the site to carry out essential improvement works. Once the works were completed the site was to be managed as temporary accommodation for travellers. Genuine travellers, it was said, were currently deterred from going on the site because of the presence there of the appellant and his family. As a result the site was underutilised. This had led to unauthorised encampments elsewhere in the area. It should be noted that the claim was not based on any allegation of misconduct on the part of the appellant or any members of his family, nor was it alleged that the licence agreement had been breached. It was based on the respondent’s judgment as to the appropriate use of the site for travellers. The appellant maintained in his defence that the respondent was only entitled to an order for possession if it was proportionate in all the circumstances of the case, and that in the circumstances of his case this test was not satisfied. He relied, inter alia, on his right to respect for his home under art.8 and on the respondent’s duty not to act in a way which is incompatible with a Convention right under s.6(1) of the Human Rights Act 1998.

The Birmingham District Registry of the High Court found in favour of the respondent. In doing so, the judge did not form any view about the merits of the justification that the respondent had given for seeking possession. He held that the appellant could not rely on the provisions of the Human Rights Act 1998 or on art.8 of the Convention. However, he did not think that there were factual disputes between the parties such as to make judicial review inappropriate. The judge gave permission to appeal and certified the case as suitable for an appeal direct to the House of Lords.

The case did, in fact, go to the Court of Appeal where the appellant’s appeal was dismissed.

The House of Lords unanimously allowed the appeal. The House stated that the case should be remitted to the judge in the High Court so that he could review the reasons that the respondent had given for serving a notice to quit to obtain vacant possession of the plots that the appellant and his family occupied. It would be for the judge to resolve any dispute that he needed to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant’s licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable. If he was satisfied that this requirement had been met he would have to make a possession order. There would be no answer to the respondent’s unqualified right to recover possession. If he was not satisfied, he would have to decline to make the order unless or until a justification that met that test had been made out.

Yeoman's Row Management Ltd & Anor v Cobbe [2008] UKHL 55 (30 July 2008)

Wed, 30 Jul 2008 00:00:00 GMT

A property developer reached an oral agreement in principle with an owner to buy its property and then spent considerable sums in obtaining planning permission. The owner then refused to proceed on the agreed terms and enter into a binding contract. The House of Lords held that the developer was not entitled to a remedy based on proprietary estoppel or a constructive trust. The developer was entitled to a quantum meruit payment for his services in pursuing and obtaining planning permission.

Majorstake Ltd v Curtis [2008] UKHL 10 (6 February 2008)

Wed, 06 Feb 2008 00:00:00 GMT

The House of Lords considered the meaning of the phrase "any premises in which the flat is contained" in the Leasehold Reform, Housing and Urban Development Act 1993, section 47(2)(b). This phrase had to be an objectively recognisable physical space and something which would be objectively recognised as "premises".

Boss Holdings Ltd v Grosvenor West End Properties & Ors [2008] UKHL 5 (30 January 2008)

Wed, 30 Jan 2008 00:00:00 GMT

The House of Lords had to consider the phrase "designed or adapted for living in" in section 2(1) of the Leasehold Reform Act 196. The property was in a dlipaidated state and had not been occupied for many years. The House of Lords held that consideration had to be given as to the original purpose of the property and in this case it was originally "designed or adapted for living in" and therefore fell within the definition of a "house".

Riverside Housing Association Ltd v White & Anr, HL, 7/5/2007

Mon, 07 May 2007 00:00:00 GMT

Where a rent review clause in an assured tenancy agreement provides that rent would be increased each year from the first Monday of June, the landlord is entitled, if the required notice is given, to increase rent on any date from and including the first Monday in June.

Stack v. Dowden (Respondent) [2007] UKHL 17 (25 April 2007)

Wed, 25 Apr 2007 00:00:00 GMT

The division of a property to be divided on the breakdown of the relationship of a cohabiting couple where it had been conveyed into joint names without an explicit declaration of their respective beneficial interests was on the basis that where there was joint legal ownership there was also joint beneficial ownership. If this is challenged, the onus lies on the challenger to show why the beneficial interests should lie differently.

Moncure v. Cahusac (as Executor of the Estate of Doris Cahusac-Delisser) (Jamaica ) [2006] UKPC 54 (22 November 2006)

Wed, 22 Nov 2006 00:00:00 GMT

The landlord accepted rent from the tenant for a number of years. The tenant claimed to have exercised an option to renew and the landlord was estopped from denying that the tenant was entitled to a further 5 year term. In the light that the landlord had accepted rental payments the landlord's claim for possession failed.

Oxfordshire County Council v Oxford City Council & Anor [2005] EWCA Civ 175 (24 February 2005)

Wed, 24 May 2006 00:00:00 GMT

The House of Lords held that in order to satisfy the definition of "town or village green" in the Common Registrations Act 1965 it was necessary for the inhabitants of that locality to "continue" to use the land for sports and pastimes for a period of 20 years until the date of application for registration.

Avonridge Property Co Ltd v Mashru, (HL) 1/12/05

Thu, 01 Dec 2005 00:00:00 GMT

The House of Lords found that the Landlord and Tenant (Covenants) Act 1995 did not render a clause under the lease void. The said clause meant that the tenant had to pay rent arrears under the headlease as the clause limited in time the landlord's liability for rent arrears. The statute was not intended to curtail the parties' right to limit liability under covenants from the outset in whatever way they agreed.

Fraser & Anor v. Canterbury Diocesan Board of Finance & Ors [2005] UKHL 65 (18 July 2005)

Mon, 18 Jul 2005 00:00:00 GMT

A school was closed in 1995 and the site was sold.The Claimants claimed to be beneficiaries of the proceeds of sale under the Reverter of Sites Act 1987. As the school had been used for the purpose of the education of poor persons within the definition of School Sites Act 1841 there had been no reverter of the site before the 1987 Act came into force.

West Bromwich Building Society v. Wilkinson & Anor [2005] UKHL 44 (30 June 2005)

Thu, 30 Jun 2005 00:00:00 GMT

The Appellant lender sought to recover a shortfall plus interest over 12 years after the property had been sold. The Respondent alleged the claim was time barred under section 20 Limitation Act 1980. The House of Lords held that section 20 did apply and the claim was time barred.