Clarion Housing Association Ltd v Louise Mary Carter (as personal representative of Agnes Monica Carter (Deceased) and personally)

Hearing date: 20 October 2021

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Introduction

The appellant housing association ( Clarion) appeals by permission of Stewart J against a decision of Deputy Circuit Judge Holt sitting in the County Court at King's Lynn from 9–11 March 2020. He gave judgment on 11 March 2020, dismissing Clarion's claim against the respondent ( Ms Carter) for possession of a property occupied by her, 9 Station Road, Attlebridge, Norwich ( the property).

The judge decided that Ms Carter was entitled to stay on at the property where she had been living with her mother, the late Agnes Monica Carter ( Monica Carter), the former assured tenant. He rejected Clarion's arguments that it was entitled to take back the property and reallocate it in accordance with its allocation policy. He decided, among other things, that Ms Carter became an assured tenant of the property in equity on her mother's death in June 2017.

The first five grounds of appeal relate to the judge's decision that a notice to quit served by Clarion on Ms Carter after her mother's death was invalid and did not terminate the tenancy. The sixth challenges the finding that “ground 7” (one of the mandatory grounds for possession, in Part 1 of Schedule 2 to the Housing Act 1988 ( the 1988 Act)) was not open to Clarion. The seventh was that the judge wrongly held that evicting Ms Carter would violate her rights under article 8 of the European Convention on Human Rights ( ECHR).

By a respondent's notice, Ms Carter contends that the judge's decision should be upheld on certain additional bases. First, she contends that by an exception to the common law doctrine of privity of contract, she was the beneficiary of a trust of the promise made by Clarion to Monica Carter not to terminate the tenancy where certain conditions in the tenancy agreement were met. She contended that they were met (or, if necessary, that if a time limit was missed time was not of the essence).

Secondly, accepting that case law subsequent to the judge's decision makes it necessary to revisit his decision on one issue – whether a copy of the notice to quit was sent to the Public Trustee (the subject of Clarion's fourth ground of appeal) – Ms Carter argues that applying the approach ordained by the subsequent case law leads to the same conclusion as the judge's: that the notice to quit was not copied to the Public Trustee in time, i.e. during its currency.

Facts

Monica Carter, a midwife by profession, became a secure tenant of the property in 1987. It is a three or four bedroom semi-detached house. The landlord was then Broadland District Council. In 1990, that district council made what is called a large scale voluntary stock transfer ( the LSVT) of its properties to Wherry Housing Association ( Wherry).

It is agreed that, after the LSVT, Monica Carter was no longer a secure tenant of a local authority under the Housing Act 1985 ( the 1985 Act). She became instead an assured tenant under the 1988 Act. The terms of her tenancy were modified, pursuant to the LSVT. They became the terms in the tenancy agreement the parties put before me at the hearing. I will return to those terms.

At some point, Wherry transferred the freehold reversion of the property to Clarion's predecessor, Circle Thirty Three Housing Trust Limited ( Circle 33), which, following amalgamation with Affinity Homes, became Clarion. That is how Clarion became Monica Carter's landlord under her assured tenancy.

Ms Carter, her eldest daughter, is a specialist practitioner in inpatient recovery. She has eight siblings. Monica Carter, unfortunately, had serious health difficulties. In about October 2004, Ms Carter moved in with her. She moved out of a property she owned in Norwich and became her mother's carer, in addition to working full time. It is now undisputed that the property (i.e. 9 Station Road) has been Ms Carter's principal residence since late 2004.

In April 2014, Clarion's predecessor, Circle 33, adopted a policy document called Succession for Lifetime Tenants (reviewed and adopted by Clarion in December 2015). It applied to assured tenancies and stated the policy where a tenant dies and a member of the deceased tenant's family wishes to succeed to the tenancy. The general approach was to allow only one succession for each tenancy (paragraph 3.2). I will return to other parts of the policy shortly.

On 13 June 2017, Monica Carter died intestate. It is agreed that by then changes to the assured tenancy regime wrought by the Localism Act 2011 (from 1 April 2012) had come into force but did not assist Ms Carter to succeed to the assured tenancy as an occupying family member, because they did not apply to tenancy agreements entered into before 1 April 2012.

Ms Carter's then solicitors wrote to Clarion on 14 June 2017, asking whether she could buy the property. Clarion was not willing to sell. Moreover, it took the view that Ms Carter should not be allowed to stay on, if it could be shown that the property was not her principal home. On 18 August 2017, Clarion served a notice to quit the property on the personal representatives of Monica Carter; but Clarion no longer relies on the effectiveness of that notice.

On 24 August 2017, Ms Carter telephoned Clarion to say she wanted to succeed to the tenancy. She was asked to put her request in writing, which she did in a letter of 29 August. Clarion was still investigating whether the property was her main and principal home. They sought proof of this. Ms Carter provided it. But Clarion did not accept (though it now does) Ms Carter's documentary evidence (utility bills, etc) that the property was her main home.

On 16 October 2017, Clarion wrote refusing the request to succeed to the tenancy on the ground that the property was not Ms Carter's main home. Any money paid would henceforth not be rent but money paid for occupation and use. Ms Carter's solicitors wrote at length on 30 October stating reasons for disagreeing with the decision, asserting her entitlement to succeed to the tenancy, by reference to its terms, in particular the landlord's covenants.

Clarion wrote to Ms Carter two days later asking her to fill in a detailed form called application to succeed to a tenancy (non-tenant). Ms Carter did so, returning it on 7 November 2017. Clarion was not persuaded. At the end of 12 December 2017, a period of six months since Monica Carter's death expired. Ms Carter, I was told, had yet to apply for letters of administration on her mother's intestacy.

On 26 January 2018, Clarion wrote refusing Ms Carter's request, this time without giving any reason. The letter stated that Clarion had “served a Notice to Quit on the personal representatives and the Office of the Public Trustee, in accordance with the law. This will legally terminate your late mother [sic] tenancy”. A copy of the notice to quit was enclosed. It required delivery up of possession on 26 February 2018:

“or the day on which a complete period of your tenancy expires next after the end of four weeks from service of this Notice”.

The tenancy agreement stated in clause 1 that it was an “assured weekly Tenancy” beginning on the date set out in the Schedule (which I do not have). Rent “is due in advance on the Monday of each week”. There is no mention in the judgment below of the exact expiry date of the notice, by reference to the period of the tenancy. The four week period from 26 January 2018 (a Friday) ran until 23 February 2018, also a Friday.

The following Monday was 26 February 2018, the date mentioned in the notice. The actual expiry date could in theory be later than 26 February, or earlier, but not earlier than 25 February. Since rent was due in advance on a Monday, however, it is very likely that the delivery up date and the termination date of the tenancy (if the notice was valid) was Monday 26 February 2018.

On 29 January 2018, Ms Carter's new solicitors wrote to Clarion asking for “detailed reasons” for declining the application to succeed to the tenancy, and “if you are relying on any form of policy specific to you, please provide a copy and notify us of the relevant clauses”. Clarion did not respond to that letter.

Ms Carter did not deliver up possession. On 27 February 2018, as is clear from a letter from the Public Trustee dated 20 March 2018, the Public Trustee registered receipt of the copy notice to quit. The letter of 20 March confirmed that. The same day, Clarion wrote to Ms Carter's solicitors, denying that she enjoyed any succession rights and explaining the reasons in detail.

Those reasons were, in essence, what was argued by Clarion before the judge and in this appeal: there was no right of statutory succession; Ms Carter did not fulfil the criteria for a succession under the terms of the tenancy; and even if she had done so, she could not rely on those terms because she was a stranger to the contract and it predated the effect of the Contracts (Rights of Third Parties) Act 1999. The letter ended with a request for the keys and vacant possession.

That was followed up...