R (on the application of Laryea) v London Borough of Ealing (2019)

High Court (Queens Bench Division) 29 August 2019

The High Court has held that a local authority had not considered the personal circumstances of a homeless man when it refused to accommodate him, pending the outcome of his application for a review of its decision that it had discharged its duty to provide him with accommodation.

The applicant (Mr Laryea) was homeless and suffered from epilepsy and post-traumatic stress disorder, and was assessed as being in priority need of housing. However, the local authority (London Borough of Ealing) found that he had become intentionally homeless and told him in a letter that it had discharged its duty to provide accommodation to him under section 189B of the Housing Act 1996. London Borough of Ealing found that he had not taken the reasonable steps agreed in his personalised housing plan. Mr Laryea sought a review of the decision, but London Borough of Ealing refused to house him pending that review. Mr Laryea subsequently applied for interim relief, in an attempt to obtain accommodation pending the outcome of the review. He claimed that London Borough of Ealing’s decision to refuse to house him had not taken into account his personal circumstances.

The Court, in granting the application, held that even though Mr Laryea had not followed his personalised housing plan, London Borough of Ealing should have properly considered his medical conditions. Evidence had shown that Mr Laryea’s epilepsy became worse when he was homeless and this should have been taken into account.

This is an extempore (oral) decision and no transcript is currently available.

Pearson v City Of Bradford Metropolitan District Council [0] UKUT 291 (LC)

Upper Tribunal (Lands Chamber) 23 September 2019

The Upper Tribunal has confirmed that the First-tier Tribunal can extend the 28-day time limit for appealing against a financial penalty imposed under the Housing Act 2004 if there is a good reason for doing so.

The appellant (Mr Pearson) had received a financial penalty as he was managing a House in Multiple Occupation and had not obtained a licence. He appealed to the First-tier Tribunal against the decision, but did not bring his appeal within 28 days of the day that the financial penalty was sent to him. He blamed the delay on the fact that he had been busy over the Christmas period, but the First-tier Tribunal rejected this argument and struck out his appeal. However, the Upper Tribunal gave permission to appeal on the issue of whether the First-tier Tribunal had a discretion to extend the 28-day period.

The Upper Tribunal, in dismissing the appeal, held that the First-tier Tribunal had been correct in its approach. The Housing Act 2004 did not impose a time limit for appealing, so the time limit was therefore 28 days pursuant to the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. The First-tier Tribunal therefore had an “unfettered discretion to extend time” under the Rules.

A copy of the judgment is here.

SH v Waltham Forest London Borough Council [0] EWHC 2160 (Admin)

High Court 6 August 2019

The High Court has held that a woman could bring a judicial review of whether she was still owed a housing duty by a local authority under the Housing Act 1996.

A mother (SH) was a victim of trafficking for sexual exploitation and was granted refugee status. She also suffered from post-traumatic stress disorder and various mental health disorders.

SH and her daughter live in accommodation provided by Waltham Forest London Borough Council. However, it was situated in an area where there was open prostitution and the Council accepted that the accommodation was unsuitable. After living in different properties, the Council made an offer of accommodation in Kettering, which was stated to be in discharge of the Council’s “relief duty” under the Housing Act 1996. However, SH did not consider the accommodation to be suitable, and requested a review of the decision. The reviewing officer concluded that the offer was a suitable one and, consequently, SH applied to bring a judicial review. In addition to her re-application for housing assistance, SH also requested that she should be placed on the Council's housing register.

The High Court granted SH’s application for judicial review in both matters, although interim relief was denied.

A copy of the judgment is available on request.

Firstport Property Services Ltd v Settlers Court RTM Company Ltd & Others [0] UKUT 243 (LC)

Upper Tribunal (Lands Chamber) 12 August 2019

The Upper Tribunal has held that a Right to Mange (RTM) company acquired the right to manage the wider estate surrounding a block of flats that were the subject of the RTM application.

A single block of flats was situated on a larger estate comprising 10 blocks of flats. The leases of flats in the single block named Firstport Property Services Limited as the management company. The RTM was responsible for providing services to the block, whilst Firstport provided the services to the estate. However, some of the leaseholders in the single block withheld their service charge payments in respect of the estate services, arguing that the provision of the estate services had passed to RTM.

The First-tier Tribunal looked at whether the service charges for the maintenance of the estate were payable to Firstport or RTM, ruling that the management functions under the residential leases had passed from Firstport to the RTM on the date the right to manage was acquired, and that those functions related to both block and estate services. Firstport appealed.

The Upper Tribunal dismissed the appeal and confirmed that the RTM acquires the right to manage the wider estate where there is more than one block of flats.

This decision will be disappointing to management companies and landlords, but the Law Commission consultation paper Leasehold home ownership: exercising the right to manage, which closed for responses on 30 April 2019, is likely to address the situation in the future.

A copy of the judgment is here.

Taylor v Mina An Ltd [0] UKUT 249 (LC)

Upper Tribunal (Lands Chamber) 13 August 2019

The Upper Tribunal (Lands Chamber) has held that if a house in multiple occupation requiring a licence under the Housing Act 2004 is sold, the existing licence cannot be transferred and the new owner must obtain a new licence

A tenant (Ms Taylor) lived in a house in multiple occupation (HMO), which required an HMO licence under the Housing Act 2004. When Ms Taylor moved into the property in July 2016, the owners had a valid licence that was due to expire in 2021. In October 2016, a company (Mina An Ltd) purchased the property and in May 2017 applied for an HMO licence, which was subsequently granted in September 2018. Ms Taylor applied for a rent repayment order (RRO), claiming that Mina An Ltd did not have a valid HMO licence between October 2016 and September 2018. However, the First-tier Tribunal dismissed her application, finding that property was licensed during this time, as the former owners' licence had not expired. Ms Taylor appealed.

The Upper Tribunal (Lands Chamber), in allowing the appeal, held that the HMO licence could not be transferred and Mina An Ltd should have applied to the local authority for a new own licence.

This ruling confirms that an HMO licence is persona and cannot be transferred. Consequently, it is essential that as soon as an HMO is acquired, a new licence must be obtained or at least applied for in advance of completion.

A copy of the judgment is here.

Shaviram Normandy Ltd v Basingstoke and Deane Borough Council [0] UKUT 256 (LC)

Upper Tribunal (Lands Chamber) 30 August 2019

The Upper Tribunal (Lands Chamber) has held that a restrictive covenant in a long lease, limiting its use to that of office premises, can be varied to allow residential use.

The tenant (Shaviram Normandy Ltd) leased a building that could only be used as offices. The headlease did not include a rental figure but entitled the landlord (Basingstoke and Deane Borough Council) to 15.5 per cent of the net annual rent received from tenants of the building. The tenant was obliged to do all it could to fully let the premises, and Basingstoke and Deane Borough Council had to consent to the terms of any subletting. The building became vacant in 2013 and Shaviram Normandy Ltd acquired the headlease in 2015. The building was in a state of significant disrepair and Shaviram Normandy Ltd applied to convert the building into residential flats, arguing that Basingstoke and Deane Borough Council, as the landlord, would receive a higher rent for the building. However, Basingstoke and Deane Borough Council refused.

The Upper Tribunal, in granting the application, held that the retention of the office use-only restriction did not secure any benefit of substantial value or advantage to Basingstoke and Deane Borough Council. The restrictive covenant was therefore modified.

The ruling highlights the fact that the Upper Tribunal is able modify restrictive covenants in some leases.

A copy of the judgment is here.

Jackson and another v Roselease Ltd [0] UKUT 273 (LC)

Upper Tribunal (Lands Chamber) 30 September 2019

The Upper Tribunal (Lands Chamber) has held that restrictive covenants in a lease can be modified in order to allow a development to take place.

The Applicants (Mr and Mrs Jackson) applied to modify restrictive covenants that affected their land in order to convert farm buildings into two houses. The proposed development was permitted development under the Town and Country Planning (General Permitted Development) (England) Order 2015, but the development could not be carried out without either (1) the consent of Roselease Ltd, a property development company that owned land near to the applicants’ land and objected to the development, or (2) the modification of the restrictive covenants.

The Upper Tribunal (Lands Chamber) ruled that the restrictive covenants should be modified to permit the development. It rejected the objections raised by Roselease Ltd, finding that the sole director of the company had not raised any concerns when the previous owner had contemplated developing the land - and in fact had been interested in carrying out the development himself.

The ruling shows that the Upper Tribunal will fully assess all the available evidence when considering objections to the modification of a restrictive covenant.

A copy of the judgment is here.