Annual rituals Sun, 01 Jan 2012 12:53:34 +0000 NL Happy new year to all who read, comment on or write for Nearly Legal! This is usually a moment to take stock of the past year and look forward to the next, but I'm feeling far too lazy to do it properly. Luckily, the DCLG have made the task easier by shouting again that they propose to crack down on subletting. In what is rapidly becoming an annual tradition, Grant Shapps has announced plans to consult on proposals to make sub-letting a criminal offence. Rather oddly, Mr Shapps says: For too long this country has turned a blind eye on the multi-billion pound problem of housing tenancy fraud and abuse. which I take to be an admission that last year's 'crackdown', action team and all, was utterly ineffective. As to the proposals - the devil will be in the detail. Mr Shapps has coupled the sublet issue with proposals to remove security of tenure and levy a 'market rent' on social housing tenants earning over £100,000 per year, hitting an estimated 6,000 tenants nationally. This seems rather over the top for legislative action, but would establish the principle of restriction on tenure by income level. This may well go further, as introducing legislation with the main aim of removing Bob Crowe's security of tenure seems a little excessive. What with this, the coming into force of the Localism Act, with new tenure provisions, and one presumes a response to the consultation on an ASB mandatory ground for possession and closing the bus pass loophole, it is going to be a busy year. There is plenty to look forward to in case law, as well. The blog has had a successful year, with more than 300,000 hits in 2011. Over 1250 people subscribe to updates by RSS and email (over 1000 by email), and, worryingly, over 1700 follow the @nearlylegal twitter feed. I say worryingly, as @nearlylegal has a tendency to go off piste. The we joined the Guardian Legal Network and our pieces appeared on the Guardian Law and Guardian housing pages. What was probably the most remarkable part of the year for me was the astonishing response through the blog in terms of people signing the public letter on the mis-representation of the law on squatting. It was a genuine surprise (and somewhat humbling) to see the level of response. At the end of 2011, another four excellent people joined the NL team, so that there are now 10 of us. Newly refreshed, we aim to keep going to our usual standard (a pleasingly non-committal and unenforceable phrase) in 2012. Proportionality, Art. 8 and Monk Mon, 02 Jan 2012 18:52:27 +0000 SJM Chesterfield BC v Bailey is a highly instructive case heard at first instance by Recorder Tilbury in the Derby County Court. We thank Philip Barber of Zenith Chambers for providing us with a transcript of the judgment. The Defence was run by Chesterfield Law Centre. [Now on Bailii [2011] EW Misc 18 (CC) ] The case deals with the issue of termination of joint tenancies via a notice to quit under the rule in Hammersmith v Monk and the proportionality/lawfulness of possession proceedings within Article 8 ECHR. JB had been the secure tenant of her 3 bedroom council property since 2002 and her sole tenancy became a joint tenancy after she married her husband, RB. The parties separated in 2005, leaving JB and her two children in occupation of the property. Several years later, RB received a communication from the council regarding rent arrears for the property he was no longer occupying. Following discussion with the council and reassurances that he would not thereafter be liable for rent arrears, RB served a notice to quit to end the tenancy, which was meant to end on 4th October 2010. The council commenced possession proceedings against JB and the case came before the judge on 12th October 2011. The initial point to be made is that the judge's comments on the proportionality of the eviction are only obiter, as the possession proceedings were dismissed for want of a lawful notice to quit: the tenancy agreement required 4 weeks but only 3 weeks and 6 1/2 days were provided. Nevertheless, the judge gave lengthy reasons why eviction, notwithstanding the notice issue, would have been disproportionate. Firstly, in advancing a Gateway B defence, JB referred to a section of the council's policy, which permitted a further discretionary tenancy to previous tenants who had a 15 year tenancy record. JB argued that this time limit was irrational and did not provide any flexibility for those who were otherwise good and deserving tenants. The judge did not accept that the policy was irrational but agreed that a policy allowing tenants to have their tenancies restored was relevant to proportionality. The judge concluded: In looking at whether it was necessary in a democratic society to apply for possession and whether it was a proportionate means of achieving a legitimate aim, I have to accept that the council was in a strict sense legally entitled to do so, and that they were not motivated by bad faith and were simply pursuing the goal of satisfying the needs of those on their housing list. I am not satisfied however that their decision to seek possession was however either necessary in a democratic society or proportionate in the circumstances of this case. This defendant had lived in this property since 2002, had lived in a previous council property since 1996, and had moved from that property mainly at the behest of the council. Had she not moved and remained in her previous property she would be secure under the 15 year rule. She has spent money on this property and any move involves further expenditure of money. In a case such as where her husband had given the present notice in circumstances where she could do nothing about it (and did not even have notice of it until either it had taken effect or possibly very shortly before) I do not find it reasonable for the council without more to rely on that notice. Where a tenant is without blame it seems to me that the council should look and see whether otherwise they might be entitled to obtain possession. If they have grounds within the statutory regime then it is quite right that they should do so, and any challenge to their rights on article 8 grounds in my view will be met by their rights following the notice to quit, as well as the statutory grounds entitling them to possession. Where there are no statutory grounds available to them (as here), and where there is no fault on the part of the defendant, and the defendant had previously had and enjoyed security of tenure without complaint, an order for possession would in my view breach the defendant’s article 8 rights. Comment: the above paragraph is particularly interesting as it demonstrates the interface between the council's right to take possession for the proper management of its housing stock (as established in Pinnock, Powell etc) and policy documents giving a stake in the management of that stock to people in the Defendant's position. One suspects that had it not been for the 15 year rule, the Claimant's arguments would have been more potent and decisive. Although the proportionality aspect of the decision is obiter, it underlines the importance of using policy documents to one's advantage when proportionality/Gateway B arguments need to be raised. Finally, it should be added that the judge declined to find that the Hammersmith v Monk rule was not compliant with Art. 8. That will have to wait for another case. Substantial Dispute Wed, 11 Jan 2012 00:21:50 +0000 David Smith Benesco Charity Ltd v Kanj & Anor [2011] EWHC 3415 (Ch) CPR55.8 has been the the subject of a surprising amount of appellate interest recently. For those of you not nodding sagely at this point CPR55.8 deals with the Courts obligations at a summary possession hearing. Put simply the Court has two choices at such a hearing, set out in CPR55.8(1). They can either decide the claim by making a possession order or give case management directions. CPR55.8(2) states that "where the claim is genuinely disputed on grounds which appear to be substantial" those directions must either include an allocation to track or enable that allocation to occur. In this case Benesco granted a lease to Speedway Tyres Ltd for ten years. K was key in the incorporation of the company and his wife was a director but K himself had no official status. Speedway was placed into liquidation along with an associated company called Autocare Ltd. The liquidator disclaimed the lease in June 2011. On 7 September K applied for a vesting order on the basis that he had a personal sub-tenancy. This application has yet to be determined. K then appeared to change his position to state that he was the assignee of a sublease held by Autocare in the basis of an assignment which was made on 20 September 2011. Benesco then issued proceedings against K and persons unknown as trespassers on 9 September. K defended this on the basis that Speedway had granted him or alternatively Autocare a sub-tenancy in October 2004. This was not actually something he could assert for Autocare until he had obtained the assignment on 20 September.