Islington London Borough Council v Honeygan-Green
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NELSON,Mr Justice Nelson |
| Judgment Date | 25 May 2007 |
| Neutral Citation | [2007] EWHC 1270 (QB) |
| Docket Number | Case No: CC/2006/APP/0377 |
| Court | Queen's Bench Division |
| Date | 25 May 2007 |
[2007] EWHC 1270 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
ON APPEAL FROM
CLERKENWELL & SHOREDITCH COUNTY COURT
SITTING AT THE MAYOR's AND CITY OF LONDON COUNTY COURT
HHJ MARR-JOHNSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nelson
Case No: CC/2006/APP/0377
CLAIM NO 5CK10768
Iain Colville (instructed by London Borough of Islington Director of Law and Public Services) for the Appellant
Adrian Jack (instructed by Wilson Barca) for the Respondent
Hearing dates: Friday 23 rd February 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This appeal against the decision of His Honour Judge Marr-Johnson of 28 th April 2006 raises an interesting question under the Housing Act 1985 which has not yet been directly determined by the Court of Appeal. The issue which arises is whether the determination of a secure tenancy by the granting of a possession order, brings to an end an existing application which has established the right to buy at a particular time and at a particular price, or whether such an application is capable of being revived once the tenancy itself has been revived. If the existing application cannot be revived, but a new one must be made, there may be a significant effect upon the discounted purchase price of the house in a rising or falling housing market.
The Facts.
On 2 July 1990 Mrs Honeygan-Green became a secure tenant of 73B Crouch Hill, London N4. She made an application to buy the property in 1996 which was accepted by the Council but as the application was not completed in time by the tenant it was deemed to have been withdrawn. She made a fresh application which was received by the Council on 23 May 2000 and admitted under section 124 of the Act on 26 October 2000. The property was valued at £175,000, with a discount of £38,000 pursuant to section 125 of the Act, making the purchase price for a 125 year lease of the property £137,000.
Mrs Honeygan-Green had been late in paying her rent on the property on several occasions during the tenancy. It is said on her behalf that this was at least in part due to the failure of the Council to administer housing benefit properly. Possession proceedings were taken against her in 1996, and in 1998 when a suspended possession order was obtained. There were breaches of that order in 1999 as a result of which eviction was set for April 2000 but that was suspended and eventually cancelled in November 2001 when Mrs Honeygan-Green cleared the arrears.
A notice seeking possession was served in January 2002 and again on 10 May 2002. The latter notice sought possession because of rent arrears of £1,887.66p and possession proceedings were issued on 14 July 2002.
In the meantime completion in respect of the admitted application to buy was delayed apparently because of two reasons, firstly because the tenants on the ground floor of the property had encroached on part of Mrs Honeygan-Green's garden which necessitated repositioning of the fence by the neighbours and an accurately drawn plan by the Council for the execution of the lease, and secondly because of the collapse of a wall in the back garden which the Council needed to repair. As a consequence of these delays Mrs Honeygan-Green served an initial notice of delay upon the Council (RTB 6 under section 153A of the Act) on 24 June 2002 and an operative notice of delay (RTB 8 under section 153A of the Act) on 26 July 2002. The RTB 6 referred to the need to have a new drawing of the back garden. The landlord did not serve any counter notice alleging that there was no action for the landlord to take under section 153A(3). It did however write to the owners of the ground floor of the property on 25 February 2003 requesting them to move the fence.
After the possession proceedings were issued in July 2002 Mrs Honeygan-Green sought to pay off the arrears. She had discussions with Miss Tina Annor, the Council's housing officer and by 3 October 2002 she had reduced her arrears to £482. There was due to be a hearing the following day in the county court in respect of the possession proceedings but as Mrs Honeygan-Green had paid £1,100 into her rent account she said that Miss Annor agreed that the Council would ask for the possession proceedings to be heard on 4 October to be adjourned. The Council do not accept that to be the case and that issue remains to be resolved.
The Council did in fact attend at Clerkenwell County Court on the following day, 4 October 2002 and obtained an order that the Defendant give the Council possession of the property on or before 1 November 2002, pay £482.45 rent arrears, and costs of £120, the order not to be enforced so long as Mrs Honeygan-Green paid the rent arrears and the amount of £50 per week for use and occupation in addition to the current rent. The next payment of current rent was due on 7 October 2002 and the first payment of £50 on 18 October 2002. Upon payment of the arrears in full the claim was to stand dismissed. This suspended order for possession was in standard County Court Form N28.
Mrs Honeygan-Green failed to pay her rent on 7 October 2002 and failed to pay the first sum of £50 on 18 October 2002, the next payment being made by her on 5 November 2002.
By letter dated 26 March 2003 the Council wrote to Mrs Honeygan-Green's solicitors stating that their client's breach of the suspended possession order meant that she had forfeited her secure tenancy, become a tolerated trespasser, and in the circumstances was no longer able to exercise the right to buy. On 23 July 2003 the Council wrote to Mrs Honeygan-Green stating that her application had been treated as withdrawn by the Council's legal department.
Mrs Honeygan-Green issued an application to set aside the order of 4 October 2002 on 8 May 2003. This was eventually heard on 8 July 2003 by which time Mrs Honeygan-Green had paid off all her arrears. The possession order was discharged.
Mrs Honeygan-Green fell into arrears again with her rent and in February 2005 the Council commenced proceedings against her for possession. In her defence and counterclaim Mrs Honeygan-Green alleged that the Council was in breach of its contractual duties and guilty of negligence by failing to remove the collapsed wall and failing to ensure that her neighbour removed the fence which wrongly encroached upon her land. In her counterclaim she asserted that the collapse of the wall and the encroachment by the neighbours caused the delay of the 2000 application of the right to buy. She counterclaimed a mandatory injunction ordering the Claimant to convey the long lease of her property to her in accordance with the 2000 application and relied, inter alia, upon a letter of 2 August 2005 in which the Claimant accepted that the Defendant was entitled to exercise her right to buy in accordance with the 2000 application. She also counterclaimed damages.
Mrs Honeygan-Green applied for summary judgment on her counterclaim and this was heard on 28 April 2006 at Clerkenwell County Court by His Honour Judge Marr-Johnson. The Judge granted Mrs Honeygan-Green her injunction upon the discharge by her of all arrears of rent. It is that decision which forms the subject matter of this appeal. Problems arose in the drawing up of the order and further orders of the County Court but a secondary appeal relating to those matters has already been dealt with and I am solely concerned with the appeal against the granting of the injunction.
The statutory framework.
The right to buy is a creature of statute. That right is currently given to secure tenants such as Mrs Honeygan-Green under section 118 of the Act. There are exceptions to the right to buy, where for example the landlord is a certain type of housing association, none of which apply here. The main area of dispute between the parties as to statutory interpretation arises out of sections 121 and 138 though it is necessary to consider various other sections together with the consequences of the termination of a secure tenancy and its revival.
Section 121 sets out the circumstances in which the right to buy cannot be exercised. It states as follows:—
“(1) The right to buy cannot be exercised if the tenant is obliged to give up possession of the dwelling house in pursuance of an order of the court or will be so obliged at a date specified in the order.
(2) The right to buy cannot be exercised if the person, or one of the persons, to whom the right to buy belongs –
(a) has a bankruptcy petition pending against him
(b) …
(c) is an undischarged bankrupt, or
(d) has made a composition or arrangement with his creditors the terms of which remain to be fulfilled.
(3) The right to buy cannot be exercised at any time during the suspension period under an order made under section 121A in respect of the secure tenancy.”
Section 121A which was inserted by the Housing Act 2004 enables a court to make a suspension order in respect of a tenancy where the tenant has engaged or threatened to engage in anti-social behaviour or the use of the premises for unlawful purposes. Under section 121A(5) where a suspension order is made:—
“(a) Any existing claim to exercise the right to buy in relation to the dwelling houses ceases to be effective as from the beginning of the suspension period, and
(b) Section 138(1) shall not apply to the landlord, in connection with such a claim, at any time after the beginning of that period..”
The claim to exercise the right to buy is made by a written notice under section 122. Such a notice may be...
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