Tenant’s Withdrawal of Notice to Quit.

It is not unknown for a tenant to give notice to quit and then withdraw the notice and stay in the property. In this situation is the landlord obliged to allow the tenant to stay and does the tenant retain security of tenure?

In the case of Lewisham LBC v Lasisi-Agiri (2003) a tenant completed the Council’s Vacation Notice dated 8 May 2001 to expire on 6 June 2001. The notice was accepted as terminating the tenancy although the notice period was less than the statutory requirement. The tenant then moved out of the flat. However, before the notice expired he moved back in and wrote to the Council withdrawing his notice.

Strictly the tenant’s notice should have expired on 11 June 2001. When the Council applied for a possession order the tenant argued that the notice was invalid because the notice period was too short. The Judge held that it was open to the Council to accept short notice and possession was granted. This decision was upheld on appeal.

It is open to the landlord and the tenant to waive the requirements in s5 of the Protection of Eviction Act 1977 in relation to a notice given by a tenant. There was no doubt that the tenant when he handed in the notice intended to quit the property and that the Council treated it as terminating the tenancy.

Crutes recently acted for a housing association seeking possession on grounds of anti social behaviour. After the NOSP was served the tenant found alternative accommodation and gave notice to quit but asked to give short notice. The landlord agreed. However, before the tenant moved out the new house fell through and she purported to withdraw her notice to quit. The date given in the notice had already expired. The housing association applied for possession on the basis that the tenancy had terminated and that the tenant did not have security of tenure.

The court held that the tenant had intended that the notice would bring the tenancy to an end and that at her express request the housing association had accepted short notice.

Can a tenant prevent a landlord obtaining possession by claiming a right to buy?

Kensington & Chelsea v Hislop (2003)
The tenant was a secure tenant by succession from her mother and had occupied the house since 1981. In May 2002 the landlord served a NOSP and in response the tenant claimed the right to buy under the Housing Act 1985. The Council admitted the right to buy but did not do anything else to progress the sale. In September 2002 the landlord issued possession proceedings. In her defence the tenant asserted that it would not be reasonable to make an order for possession because the landlord had prevented her from exercising her statutory rights. The court took the view that the Council had unjustifiably prevented the tenant from exercising her right to buy. On the facts of the case it would be unreasonable to grant a possession order.

This decision was upheld on appeal. The right to reasonableness was crucial. The fact that the landlord had failed to perform its statutory duty in processing the tenant’s claim was plainly a factor – but not the only one – to be taken into account by the court.

In cases such as this there can be a conflict between the landlord’s right to possession and the tenant’s right to buy. Both claims arise under the Housing Act 1985. In the Kensington & Chelsea case the judge took the opportunity to provide some guidance:

• The right to buy is a step by step process and is not concluded until the sale is completed.
• Nothing in the legislation deprives the landlord of the right to seek possession after the tenant has claimed the right to buy.
• The existence of a right to buy claim is not the ace of trumps and does not necessarily outweigh the landlord’s claim to possession.
• The legislature cannot have intended that there should be a race between the parties to be the first to get the order required. A court faced with a claim for possession and an as yet only partially exercised right to buy has a discretion as to the order in which to deal with the cases.

The court was asked to give additional guidance on how the discretion should be exercised. It was reluctant to do so because each case will turn on its own facts. In the Kensington & Chelsea case the court took into account the fact that the tenant had occupied the property since 1981 and that the right to buy claim was well founded and genuine in the sense that it was capable of being carried through to completion rather than being a device to delay possession. Another factor was the landlord’s deliberate failure to progress the tenant’s claim in order to prolong the process.

In other cases persistent or serious breaches of the terms of the tenancy may justify a court in favouring the landlord. A tenant who fails to abide by the terms of the tenancy should not have any great claim to benefit from the right to buy at a discount.

Disrepair

The Housing Disrepair Protocol came into force on 8 December 2003. Most claimant firms had already started to implement it although the temptation to select the most favourable bits and ignore the rest proved too much for some. In an attempt to avoid the Protocol one firm managed to issues proceedings the day after sending out letters of claim and before they had been received by the landlord. The courts are unlikely to be impressed by such tactics. In any event, claimants were already expected to comply with the general pre-action protocol and the overriding objective.

Fastrack Indemnity Insurance went into administration at the beginning of December. This company provided insurance to support conditional fee agreements. Martin Lee & Co is one of the firms that used their services. CFAs do not have to be backed by insurance but most tenants would not be willing to go ahead with a claim if they might be faced with a large legal bill if the case fails. It is worth checking to see if Fastrack is involved in any claims against you.

The courts in the North East have been taking an increasing hard line against claims for excessive costs. Where appropriate small claims track costs have been awarded even though the case may have been allocated to the fast track.

The courts have not been receptive to challenges to CFAs made on technical points. However, a line of argument that has found some judicial favour is based on the availability of legal aid to fund disrepair claims. If legal aid is available to a tenant then this might be the most appropriate method of funding. The funding options should be properly explained to tenants before they sign up to a CFA.

Housing Bill

This new legislation was included in the Queen’s speech. The aim is to “create a fairer housing market and protect the most vulnerable”. The measures proposed include:

• Right to Buy changes to restrict the secure tenant’s right to buy
• Anti social behaviour – including the extension of introductory tenancies, suspension of the right to buy and loss of the right to exchange
• Housing health and safety – replacement of the current housing fitness standard with an evidence based rating system.

The Bill can be found here on the United Kingdom Parliament website.

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