John Nethken Zionmor v Mayor & Burgesses of the London Borough of Islington
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK,LORD JUSTICE PILL |
| Judgment Date | 10 October 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1010-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 97/0110/E |
| Date | 10 October 1997 |
[1997] EWCA Civ J1010-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL COUNTY COURT
(HIS HONOUR JUDGE SIMPSON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
Lord Justice Chadwick
CCRTF 97/0110/E
MR J MANNING (Instructed by Marie Rosenthal, Head of Law, London Borough of Islington, London N1 2UD) appeared on behalf of the Appellant
MS A SEIFERT (Instructed by Messrs Alban Gould Baker & Co, London N7 6HG) appeared on behalf of the Respondent
Friday, 10 October 1997
This is an appeal against an order made on 20 December 1996 by His Honour Judge Simpson sitting in the Clerkenwell County Court. The Judge decided, on a preliminary issue in these proceedings, that the respondent, John Nethken Zionmor, had not surrendered his secured tenancy of a council flat, No. 2 Daren Court, London N7.
The appellant, the London Borough of Islington, is the landlord of the flat known as 2 Daren Court. By a tenancy agreement made on 6 April 1992 the flat was let to the plaintiff on a weekly tenancy. By virtue of the provisions in Part IV of the Housing Act 1985, that tenancy is or was a secure tenancy for the purposes of that Act. Part V of the Act gives to a secure tenant in the circumstances there provided a "right to buy" the property of which he is a tenant. Where, as in the present case, the dwelling house is a flat, effect is given to that right by the grant of a long lease by the landlord to the tenant—see section 138 of, and Part III in schedule 6 to, that Act. The price or premium payable on the grant of that long lease reflects a discount from the open market value—see sections 126(1B) and 129 of the Act. The right to buy at a discounted price or premium is a valuable right.
The tenant gave notice of his claim to the "right to buy" on or about 5 October 1995. By a notice in reply dated 11 October 1995, that claim was admitted by the landlord. Before the transaction could be completed by the grant of a lease, the tenant ceased to occupy the premises. The landlord contends that the circumstances of the tenant's departure were such as to amount to a surrender of the tenancy; with the consequence that the "right to buy" has been lost—see the decision of the Court of Appeal in City of Bradford Metropolitan Council v. McMahon & McMahon (1993) 25 HLR 534.
The tenant commenced these proceedings in April 1996. He sought orders that he be readmitted to occupation of the flat and that the landlord be restrained from interfering with his quiet enjoyment of it. He sought, also, an order requiring the landlord to grant him the long lease to which he would be entitled under the "right to buy" provisions in the Housing Act 1985. The proceedings came before His Honour Judge Simpson in December 1996. He heard as the trial of a preliminary issue, evidence and argument the question whether, on 25 November 1995, the tenant had surrendered his tenancy to the landlord.
The Judge held that by the autumn of 1995 the flat was in a deplorable condition. The locks had been tampered with to such an extent that the tenant was able to enter the property only by means of a window. The Judge did not find it necessary to decide whether, and if so to what extent, the tenant was partially responsible for that state of affairs. It was common ground that on or about 25 November 1995, having initiated the right to buy procedure in the way that I have described, the tenant left the flat, leaving in occupation a friend or acquaintance, Miss Hussein. At the time of his departure he put a notice on the tenants' notice board (which is in the block of which the flat forms part) in these terms:
"To those that have written graffiti on the walls by my flat and have smashed my windows and interfered with my door locks please note I no longer reside at Daren Court."
His explanation for that note, which the Judge accepted, was that, if those who, by their harassment, had made his continuing occupation difficult or untenable could be led to think that he had gone away for good, they would leave Miss Hussein alone. The Judge accepted that his motive was to protect her and that his motive in moving some of his furniture out of the flat was to secure it from vandals and other undesirable people.
On 27 November 1995 the landlord was informed (by another tenant at Daren Court) that furniture and household effects had been removed from the flat by the tenant on 25 November. The notice to which I have referred was handed to one of the Council's officers. The landlord was also informed that Miss Hussein and one other person (not identified) remained in the property.
A few days later, on 1 December 1995 following a telephone call from one of the tenants of Daren Court to the effect that Miss Hussein had herself vacated the flat, the property was visited by one of the defendants' housing estate managers. She found five broken windows, one window still intact, and the rest boarded up. The premises had been cleared of all belongings, including carpets; save for one sofa and one wardrobe. The Council's housing estate manager arranged for the remaining broken windows to be boarded up and for a chain and padlock to be put on the door.
On 4 December 1995 the landlord secured the premises by changing the locks to the front entrance door. The landlord, through its housing estate manager, formed the view that the premises had been abandoned. It treated the property as vacant and closed the rent account. The tenant must have learnt of the landlord's actions at that property. On or about 5 December 1995 he telephoned the housing department. He was told that the Council were treating him as having abandoned the premises. It seems clear that he did not re-enter or attempt to re-enter.
Notwithstanding the Council's perception that the tenant had vacated the flat at the end of November 1995, on 11 December 1995 the Council sent to him a landlord's offer notice under section 125 of the Housing Act 1985. That notice informed him that it had been established that he had the right to buy a long lease of the flat at a nominal rent of £10 per annum; that the open market value of the flat had been assessed at £33,000; the discount to which he was entitled, based on three years' secured tenancy was £15,180, and that accordingly the offer price to him was £17,820. The offer notice informed him, also, that he was under a statutory duty, within the prescribed time limit of 12 weeks from service of the notice, to serve a notice of intention on the landlord electing either to pursue his claim to exercise his right to buy on those terms, or to pursue a claim to exercise a right to acquire on rent mortgage terms, or to withdraw the right to buy application. By a notice dated 2 January 1996 the tenant accepted the offer contained in the notice of 11 December 1995.
Also on 2 January 1996, the solicitors instructed by the tenant wrote to the Council in these terms:
"Our client returned from a holiday with his mother's family in Paris on Tuesday the 19th December. When he returned he found he could not enter the flat because the locks had been changed.
Evidently you have advised our client that you thought he had abandoned the flat before he left. This is not the case however. Our client has been suffering considerable harassment in the last few months and ten of his fifteen windows have been smashed because bricks have been hurled in. Graffiti has been written continually on the walls outside his flat and metal has been jammed in the locks of the door so he could not get in for the last two weeks before he went away. Four times metal has been jammed in the locks, three times in the Yale lock and once in the Mortice lock. Our client therefore had to go away for a short period because he could not stand the harassment."
The response to that, by a letter of 18 January 1996, was that the Council had been advised that the tenant had surrendered his tenancy and therefore the keys would not be made available to him. The reason for that view was elaborated in a subsequent letter of 25 January 1996, in these terms:
"The Court would imply surrender if it was of the view that your client had acted consistently with an intention to cease residing at the premises. I am of the opinion that the fact that your client left the premises, removed all his furniture including the carpets, damaged the locks, and placed a card stating that he no longer resided at the property would all be acts sufficient for the Court to imply surrender.
This surrender was accepted by the London Borough of Islington by virtue of the fact that steps were taken to secure the property by changing the locks, taking physical possession of the property, and voiding the rent account."
Following that correspondence the tenant commenced these proceedings on 10 April 1996. He sought an interim order requiring the landlord to re-admit him to...
To continue reading
Request your trial
-
Friends First Managed Pension Funds Ltd v Smithwick
... ... ( Zionmor v. Islington London Borough Council (1998) 30 ... ...