Global 100 Ltd v Carlos Jimenez and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lord Justice Singh,Lord Justice Lewison |
| Judgment Date | 27 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1243 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: CA-2022-000767 & CA-2022-002252 |
[2023] EWCA Civ 1243
Lord Justice Lewison
Lord Justice Singh
and
Lord Justice Dingemans
Case Nos: CA-2022-000767 & CA-2022-002252
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(LANDS CHAMBER)
[Upper Tribunal Judge] Martin Rodger KC, Deputy Chamber President
LC-2021-452
&
The Hon Mr Justice Fancourt
LC-2022-000030
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Grundy KC & Sean Pettit (instructed by Kelly Owen Ltd) for Global 100 Limited
Justin Bates & George Penny (instructed by Hammersmith & Fulham Law Centre) for Carlos Jimenez and the other occupiers
Nicholas Grundy KC & Sean Pettit (instructed by Kelly Owen Ltd) for Global 100 Limited and Global Guardians Management Limited
Ranjit Bhose KC & Tara O'Leary (instructed by HB Public Law) for the London Borough of Hounslow
Justin Bates & George Penny (instructed by Hammersmith & Fulham Law Centre) for Maria Laleva and the other occupiers
Hearing date: 11 October 2023
Approved Judgment
This judgment was handed down remotely at 12.00, noon, on 27.10.23 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Introduction
This is the hearing of two appeals from decisions of the Upper Tribunal (Lands Chamber). Both appeals raise an issue about whether the use made by “property guardians” of their “living accommodation” constituted “the only use of that accommodation” for the purposes of section 254(2)(d) of the Housing Act 2004, meaning that the relevant properties in these appeals were a “house in multiple occupation” (HMO) for the purposes of section 254 of the Housing Act 2004. The Upper Tribunal had dismissed appeals from decisions of the First-tier Tribunal (Property Chamber) (the FTT) which had found that the relevant properties constituted HMOs.
The relevant properties in these appeals are the former Addison Lee Office building at 35–37 William Road, Euston, London (the William Road property), and a former nurses' home at 14–16 Stamford Brook Avenue, London W6 (the Stamford Brook property). The first appellant Global 100 Limited (Global 100) was found by the FTT and the Upper Tribunal to be a company managing the William Road property. The second appellant Global Guardians Management Limited (Global Guardians) and Global 100 were companies variously held by the FTT and Upper Tribunal to be in control of or managing the Stamford Brook property. The third appellant Theo Kyprianou (Mr Kyprianou) is a director of Global Guardians and Global 100.
The respondents in the William Road appeal are Carlos Jimenez and two other occupiers who were property guardians at the William Road property who were granted Rent Repayment Orders (RROs) by the FTT. The Respondents in the Stamford Brook appeal are: the London Borough of Hounslow (Hounslow), which is the local authority for the area in which the Stamford Brook property is located and which issued a financial penalty notice in relation to that property and Maria Laleva and 10 others who were property guardians at the Stamford Brook property, some of whom were granted RROs by the FTT.
Property guardians
There is no statutory or official definition of a “property guardian” who are also referred to as “guardians”. The Government published non statutory guidance which recorded that a property guardian is someone who has entered into an agreement to live in a building or part of a building that would otherwise be empty for the primary purpose of securing and safeguarding the property. Property guardian companies use empty buildings such as old factories, offices, schools or pubs. The property guardian companies then license property guardians to live in the empty property who pay the property guardian companies a licence fee for living at the empty property. This assists in securing and safeguarding the empty property. The Government guidance warned about the risks to safety arising from living in buildings which were designed for other purposes. It was estimated that there were 5,000 to 7,000 people living as property guardians in empty buildings.
There have been a number of cases involving property guardians in the FTT. The Court of Appeal has considered property guardians in the context of rates and office buildings in Ludgate House Limited v Ricketts [2020] EWCA Civ 1637; [2021] 1 WLR 1750( Ludgate House). In that case a property guardian company contacted the owners of an empty office building scheduled for redevelopment, offering to install property guardians to occupy the empty property before it was redeveloped. At paragraph 7 of the judgment Lewison LJ said “a property guardian is a private individual who, usually with others, occupies vacant premises under a temporary contractual licence until the building owner requires it for redevelopment. The arrangement provides the guardian with accommodation at a lower cost than in the conventional residential letting market, it provides the supplier with a fee for making the arrangements, and it provides the building owner with some protection against squatters …”.
In Global 100 v Laleva [2021] EWCA Civ 1835; [2022] 1 WLR 1046 ( Global 100 v Laleva) the Court of Appeal considered a claim for possession made by Global 100 against Ms Laleva and other occupiers in respect of the Stamford Brook property. Ms Laleva, who is a party to this appeal, had been granted permission to defend the possession proceedings by His Honour Judge Luba KC on the basis that it was arguable that Global 100 (as opposed to the registered owner of the Stamford Brook property or Global Guardians) did not have the right to seek possession and on the basis that it was arguable that Ms Laleva had a tenancy of her living accommodation at the Stamford Brook property and not a licence. His Honour Judge Luba KC's description of the contract between the owner of the Stamford Brook property and Global Guardians in that judgment as a licence was submitted, on behalf of Global Guardians, to give rise to an issue estoppel against Ms Laleva and other occupiers in this appeal. Lewison LJ gave a judgment with which Macur and Snowden LJJ agreed, and found that Ms Laleva was estopped from denying Global 100's title to seek possession, given that Global 100 had licensed Ms Laleva to enter the property. Further, that in the light of the surrounding circumstances and the purpose of the agreement, Ms Laleva had been granted a licence and not a tenancy of the property.
Houses in Multiple Occupation
Part XI of the Housing Act 1985 provided for the regulation of HMOs by local authorities. Nourse LJ in Rogers v Islington (1999) 32 HLR 138 at 140 stated that “it is of the greatest importance to the good of occupants that houses which ought to be treated as HMOs do not escape statutory control”. In Brent London Borough Council v Reynolds [2001] EWCA Civ 1843; [2002] HLR 15 Buxton LJ identified that Parliament had made special provision for HMOs because of the fact that it was often persons and families most in need of social protection who were obliged to occupy housing that had been designed for occupation by one family but which had been converted for occupation by a number of separate families or individuals. There was reference in the submissions before this Court about the statutory policy to ensure a minimum level of standards for housing accommodation.
Part XI of the Housing Act 1985 was replaced by relevant provisions in the Housing Act 2004. The definition of an HMO was altered. It was common ground that this was because the definition of an HMO in the Housing Act 1985 had caught a number of hostels or hotels which were not the intended subject of the legislation. The Housing Act 2004 does, however, include a provision permitting the local authority to declare that certain properties would be HMOs.
If a property is an HMO then the property will need to be licensed if it is of a prescribed description, for the purposes of the Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018.
Material findings in relation to the William Road property
The FTT decision in relation to the William Road property was dated 6 July 2021 and the Upper Tribunal decision (Upper Tribunal Judge Martin Rodger KC, Deputy Chamber President) was dated 2 February 2022. The relevant background set out below is taken from the findings made by the FTT.
The William Road property was owned by Euston One Limited (Euston One). By an agreement dated 20 November 2019 between Euston One and Global Guardians, possession of the William Road property was handed to Global Guardians so that property guardians could be installed in the property for a fee to be paid by Global Guardians of £3700. Global Guardians' obligations included an obligation on Global Guardians and Global 100 to use reasonable care to ensure that no damage was caused to the property.
The property was managed by Global 100 on behalf of Global Guardians. The FTT Judge referred to the “fluidity” of the respective responsibilities of Global 100 and Global Guardians for the William Road property. In the proceedings before the FTT, Global 100 was substituted at its request as the respondent to the application for RROs and it was agreed that it was in control of the William Road property for the purposes of the Housing Act 2004.
The part of the William Road property occupied by Mr Jimenez and the other property guardians in this appeal was described as a “flat” which comprised three offices with a communal bathroom on the adjoining landing. One of the rooms was...
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