Alamo Housing Co-operative Ltd v Meredith
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann |
| Judgment Date | 04 April 2003 |
| Neutral Citation | [2003] EWCA Civ 495 |
| Docket Number | Case No: B2/2002/2376-2382 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 2003 |
[2003] EWCA Civ 495
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CLERKENWELL
COUNTY COURT
Lord Justice Schiemann
Lord Justice Mance and
Mr Justice Richards
Case No: B2/2002/2376-2382
Simon Mills (instructed by Glazer Delmar Solicitor) for the Respondent
David Carter (instructed by Mary Ward Legal Centre) for the Appellants
This is the judgment of the court. Before the court are appeals by 7 persons who live in properties the freehold of which is owned by Islington Council ["the Council"]. The Council had entered into a lease ["the Lease"] whereby it granted to the respondent claimant ["Alamo"], which is a fully mutual housing association, a tenancy of a whole series of properties which were scheduled to the Lease. Alamo had in turn granted a series of subleases in similar form [the Subleases"] to each of the appellant defendants each of whom rented one of these properties.
They each appeal from a decision of District Judge Armon Jones with his leave. All the appeals are concerned with the same issue, namely, the interest required of a claimant in possession proceedings.
The background to the dispute is identical in each case and is as follows and can be gathered from the terms of the Lease, the Sublease and the Notices to Quit served by the Council and the claimant.
The Lease
The Lease was dated 19 th November 2001 and was made between the Council as landlord and Alamo as tenant. It replaced an earlier lease between the same parties which commenced on 3rd October 1994.
The current Lease recites:
"(i) The Council hold the reversion immediately expectant upon the term hereby granted of the premises referred [sc. to] in the First Schedule hereunder which the Council do not require at the present time and which the Council is willing to make available to the Tenant on a short term basis
(ii) It is intended that the Tenant shall use the premises to provide temporary housing and accommodation for the persons in housing need for whom the Council would not itself normally be able to provide permanent housing …
(iii) As the Council's programme for estate development progresses the Council will require that the premises are handed back to enable the Council to redevelop the same
(iv) In view of the foregoing it is necessary that temporary occupants of the premises should not enjoy security of tenure and had the Council been unable to make the premises available on a temporary basis, the premises would have remained empty
(v) Any member or tenant of Alamo Co-Operative limited or it's managing agents who occupies the premises or any part thereof as a result of an agreement with Alamo Housing Co-Operative Limited shall not become a secure tenant of the Council"
The Lease is for a term of two years. However it contains the following power to determine in clause 2(1):
"If at any time prior to the end of the Term of Years the Council shall desire to take possession of the demised premises or any portion thereof for any reason the Council may serve upon the tenant a notice in writing stating that possession is required expiring on any date but being not less than 28 days after the date of service of the said notice upon which the Council requires possession of the demised premises or any part thereof and on the expiration of the said notice the tenant's interest granted in respect of the demised premises or such part (as the case may be) shall forthwith cease and determine except for the purpose of enabling eviction if required by the Council [italics supplied] but without prejudice to:
(a) the respective accrued rights of the Council and the tenant hereunder and
(b) in the case of a notice concerning part only of the demised premises, to the tenant's rights, covenants and obligations concerning the remainder of the demised premises."
We shall refer to the part italicised as "the Exception". It is crucial to this appeal. The earlier 1994 lease did not have an equivalent to the Exception.
Clause 3 contains various tenant's covenants of which only the following are of arguable significance:
"(1) To pay to the Council rent and service charges at the rate of £41,50 per dwelling per week and £20.75 per bedsit per week or as varied from time to time in accordance with Clause 1 above No rent or service charges to be payable in respect of any part of the Demised Premises in respect of which notice has taken effect under Clause 2(1) hereof
(5) At the expiration or sooner determination of the Term of Years quietly to yield up unto the Council the Demised Premises in such repair and condition as is hereby provided and with vacant possession
(7) Not to assign or sub-let the whole or any part of the Demised Premises or to share occupation thereof save that the Tenant may sub-let individual parts of the Demised Premises on a temporary basis to its members in housing need on the terms and conditions set out in the occupation agreement contained in the Second Schedule hereto, and immediately upon completion of any such agreement to give the Council notice thereof, and a copy of such agreement
(15) To use its best endeavours to provide alternative accommodation to persons living in the Demised Premises at the date of termination of this Lease (however determined) who have no other accommodation available to them and to advise all prospective occupiers of the terms of this covenant
(16)(4) At the end of the tenancy howsoever determined to:-
(1) leave the Demised Premises and the Council's fixtures and fittings in as good a state of repair as they were at the beginning of the tenancy except for deterioration caused by fair wear and tear or the Council's failure to carry out its obligations
(2) leave the Demised Premises in a clean condition and remove all rubbish …
(3) secure the Demised Premises
(4) immediately hand in to the Council the keys of the Demised Premises"
Clause 4 contains various covenants by the Council of which only (1) and (3) are of possible significance:
"(1) That the Tenant paying the rent and services hereby reserved and observing and performing the several covenants and stipulations on the tenant's part herein contained shall peaceably hold and enjoy the Demised Premises during the Term of years without interruption by the Council …
(3) To inform the Tenant as soon as the Demised Premises are required by the Council for a Redevelopment Programme without prejudice to clause 2(1) hereof and to notify the Tenant as soon as reasonably practicable of the date by which vacant possession of the Demised Premises will be required for inclusion in the programme"
The Second Schedule exhibits the Sublease
The Sublease
The Sublease starts with the following recitals:
"RECITALS
WHEREAS:-
(i) The Co-operative has been granted a tenancy of the premises by London Borough of Islington. … from 3 rd October 1994 and thereafter from week to week for the purposes of providing temporary housing accommodation and
(ii) By virtue of the terms of the aforementioned tenancy, the Co-operative does not enjoy security of tenure under either the Landlord and Tenant Act 1954, the Housing Act 1985 or the Housing Act 1988 and
(iii) The Co-operative is a fully mutual Housing Association within the definition of Part 1 of the Housing Associations Act 1985 and is accordingly incapable of granting an assured tenancy within the meaning of Section 1 of the Housing Act 1988 and
(iv) It is the intention of the Co-operative and the Tenant that the Co-operative should allow the Tenant to occupy the premises temporarily pending such time as the London Borough Of Islington (hereafter referred to as The Owners) shall wish to recover possession"
Clause 3 sets out the subtenant's obligations which include those in clause 3(16)
" Moving Out
(16) To give the Co-operative vacant possession and to return the keys of the premises at the end of the tenancy and to remove all furniture, personal possessions and rubbish and to leave the premises and the fixtures and fittings belonging to the Co-operative or to the Owners in good condition and repair. …"
Clause 4 is headed TERMINATION OF THE TENANCY and includes
"[21] …
(b) The Co-operative may bring the tenancy to an end by giving the Tenant 4 weeks written notice to quit. Such notice shall only be given in the following circumstances:-
…
[v] If the Owner has informed the Co-operative that it requires vacant possession of the premises and has given the Co-operative Notice to Quit
(c) The Tenant can only be required to give the Co-operative possession of the property by order of the County Court such order to be obtained by the Co-operative or The Owner. Proceedings cannot begin until expiration of the Notice to Quit."
The Council's Notices to Quit
Shortly thereafter the Council served Notices to Quit on Alamo in respect of each of the properties occupied by the defendant sub-tenants. Nothing turns on the terms of those notices.
Alamo's Notices to Quit
Shortly after receipt of the Council's Notices to Quit Alamo itself served Notices to Quit on each of the Defendant subtenants. Those notices each required the subtenant to quit his premises some four weeks or so later.
The Possession Claims
These possession claims were launched by Alamo after the date of expiry of Alamo's Notices to Quit, which date was itself after the expiry of the Council's Notices to Quit.
The possession claims were brought under C.P.R.55 and, in accordance with Paragraph 55.4 of the practice Direction subparagraph 2.6...
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