London Borough of Haringey v Hines
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,JUDGE YELTON,Mr Justice Peter Smith,Lord Justice Pill |
| Judgment Date | 20 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1111 |
| Docket Number | Case No: B2/2009/2045 and 2023 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 2010 |
[2010] EWCA Civ 1111
His Honour Judge Yelton
Before: Lord Justice Pill
Lord Justice Rimer
and
Mr Justice Peter Smith
Case No: B2/2009/2045 and 2023
Case No: 8ED03576
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
Mr Nicholas Grundy (instructed by the London Borough of Haringey, Corporate Legal Service) for the Claimant
Mr Ali Reza Sinai (instructed by Attwaters) for the Defendant
Hearing dates: 28 & 29 July 2010
Lord Justice Rimer:
Introduction
The claimant, the London Borough of Haringey (‘Haringey’), and the defendant, Samantha Hines, have each appealed against the order of His Honour Judge Yelton dated 18 August 2009 in the Cambridge County Court. Nicholas Grundy represented Haringey and Ali Reza Sinai represented Ms Hines, as they both also did before the judge.
Haringey is a local housing authority for the purposes of the Housing Act 1985. Ms Hines was formerly its secure tenant of a flat at 26 Falconer Court, Compton Crescent, London N17 (‘the flat’). In December 2001 she exercised her statutory ‘right to buy’ the flat and on 14 October 2002 Haringey granted her a long lease of it in completion of such exercise. The market value of the flat was £80,000, but Ms Hines bought at a price of £42,000 reflecting a discount of £38,000 to which the duration of her tenure had entitled her.
In 2008 Haringey formed the view that Ms Hines may not as at 14 October 2002 have been in occupation of the flat as her ‘only or principal home’; and that, if so, she had not been entitled to the grant of the lease under the ‘right to buy’ provisions. By its particulars of claim issued in July 2008, as amended, Haringey sought rescission of the lease, alternatively a declaration that it was void, damages for a fraudulent misrepresentation said to have been made by Ms Hines on 16 May 2002, alternatively damages on the basis that that misrepresentation was made negligently or innocently. Ms Hines defended the claim, asserting that as October 2002 the flat remained her ‘only or principal home’ so that she had been properly entitled to the lease and denying the making of any misrepresentation.
Judge Yelton found that Ms Hines had ceased to occupy the flat as her ‘only or principal home’ in the spring of 2002 and was not so occupying it on 14 October 2002. That meant that she was not then still a secure tenant of the flat and so was not entitled to complete her right to buy it ( London Borough of Sutton v. Swann (1985) 18 HLR 140, at 144, 145; Muir Group Housing Association Ltd v. Thornley & Thornley (1993) 25 HLR 89). He nevertheless rejected Haringey's case that the grant of the lease was ultra vires and void. He also rejected its case that it was entitled to rescind the lease for misrepresentation, his reasoning being that the lease was neither a contract nor a binding transaction susceptible of being so rescinded (a conclusion he considered was compelled by this court's decision in Rushton and another v. Worcester City Council [2001] EWCA Civ 367; [2002] HLR 9). He did, however, find that Ms Hines was liable to pay damages to Haringey for deceitfully misrepresenting to it that she was still living at the flat in October 2002; and he fixed the damages so payable at the amount of the discount (£38,000) plus interest. He refused permission to both parties to appeal.
By an order of 11 December 2009, Arden LJ permitted Ms Hines to appeal on two grounds. First, that Judge Yelton's decision that she had deceived Haringey as to her status in the flat in 2002 was unsupported by evidence and perverse. Second, that he was wrong to find her liable to Haringey in the amount of the discount. Arden LJ also permitted Haringey to cross-appeal on three grounds and adjourned to us its permission application on a fourth, relating to the judge's costs order, which in the event was not pursued. By those three grounds, Haringey was permitted to challenge (i) the judge's conclusion that the lease was not void as being ultra vires; (ii) his conclusion that, if intra vires, it was neither a contract nor a binding transaction in respect of which rescission was available; and (iii) his award of damages: Haringey claims it should have been higher.
Secure tenants and the ‘right to buy’
Part IV of the Housing Act 1985 is headed ‘Secure Tenancies and Rights of Secure Tenants’. Section 79 provides that a tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy ‘at any time when the conditions described in sections 80 and 81 as the landlord and the tenant condition are satisfied.’ Section 80 explains what the ‘landlord condition’ is and there is no dispute that it was satisfied in this case at all material times. Section 81 defines the ‘tenant condition’ thus:
‘The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.’
Section 82(1) provides that a secure tenancy which is either a weekly or other periodic tenancy, or a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or an order under subsection (3).
A secure tenant's ‘right to buy’– in the case of a flat, a right to buy a long lease – is dealt with in section 118 and following, in Part V of the Act. Section 119 prescribes the qualifying period of occupation before the right arises. Section 122(1) provides that a ‘secure tenant claims to exercise the right to buy by written notice to that effect served on the landlord’. Section 124 provides for the service by the landlord within a specified subsequent period of a written notice either admitting the right or denying it for stated reasons. In cases in which the tenant's right to buy is admitted or otherwise established, sections 125 to 129 deal (inter alia) with the fixing of the price by reference to the value of the dwelling-house at the relevant time, subject (by section 129) to the discount to which the purchaser is entitled by reference to the period to be taken into account in accordance with Schedule 4. Section 138 provides that, as soon as all matters relating to the grant have been agreed or determined, the landlord shall (in the case of a flat) grant the tenant a lease in accordance with the following provisions of the Act.
Other legislation
A housing authority's power to dispose of property owned by it for the purposes of housing accommodation is constrained by section 32 of the Housing Act 1985, subject to the qualification contained in section 44. These provisions, also relevant to the argument, are, so far as material, as follows:
‘32. Power to dispose of land held for purposes of this Part
(1) Without prejudice to the provisions of Part V (the right to buy), a local authority have power by this section, and not otherwise, to dispose of land held by them for the purposes of this part.
(2) A disposal of land under this section may be effected in any manner but, subject to subsection (3), shall not be made without the consent of the Secretary of State.
(3) No consent is required for the letting of land under a secure tenancy or an introductory tenancy or under what would be a secure tenancy but for any of paragraphs 2 to 12 of Schedule 1 (tenancies, other than long leases and introductory tenancies, which are not secure). …
44. Avoidance of certain disposals of houses without consent
(1) A disposal of a house by a local authority made without the consent required by section 32 or 43 is void, unless –
(a) the disposal is to an individual (or to two or more individuals), and
(b) the disposal does not extend to any other house…
(3) In this section “house” does not have the extended meaning of the definition of “housing accommodation” in section 56, but includes a flat.’
The facts
I take these from the judge's findings as supplemented by the documents. Ms Hines was born on 12 October 1975. In October 1993, when almost 18, she moved into the flat of which she became Haringey's secure tenant under a tenancy agreement dated 4 October 1993. At some point, she also became an employee of Haringey, although not in its housing department. Her son, Jelani, was born on 29 January 1997 and is now 13. His father is her former partner, David Rogers.
On 3 December 2001 Ms Hines exercised her ‘right to buy’ the flat by giving a written notice (‘Form RTB1’) to Haringey under section 122. She ticked the box on it indicating that she occupied the flat as her ‘only or principal home’. It is agreed that at that stage she did so occupy it and that she was entitled to exercise the right to buy, as Haringey admitted by its notice dated 31 December 2001 (section 124). By reason of the length of her occupation, she was also entitled to the maximum discount.
On 27 February 2002 Ms Hines wrote to Haringey's payroll service and its personnel department stating that she would be going on maternity leave and asking for her payroll slips to be sent to ‘my home address’, saying that ‘I have recently moved and my new address is 23 Little Pynchons, Harlow’. Mr Rogers had bought that property (‘Little Pynchons’) in January 2002.
On 1 March 2002 Haringey gave Ms Hines a notice under section 125 stating that the...
To continue reading
Request your trial
-
Brewer v Mann
...Fraud Office [2004] EWCA Civ 104 at paras 28 and 29 per May LJ; The Mayor and Burgesses of the London Borough of Haringey v. Hines [2010] EWCA Civ 1111 at para 39 per Rimer LJ, citing Abbey Forwarding Ltd (in liquidation) v. Hone [2010] EWHC 2029 (Ch) at paras 46–49 per Lewison J; and Drive......
-
Ras Al Khaimah Investment Authority v Farhad Azima
...Ltd (in liquidation) v Hone [2010] EWHC 2029 (Ch). More importantly, however, it was endorsed by this court in Haringey LBC v Hines [2010] EWCA Civ 1111, [2011] HLR 92 Those cases were cited to the court in the more recent case of Howlett v Davis where one of the issues was whether a per......
-
United Company Rusal Plc (a company incorporated in Jersey) v Crispian Investments Ltd (a company incorporated in Cyprus)
...of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out….” 129 In Haringey v Hines [2010] EWCA Civ 1111 Rimer LJ stated the following at [39]: “ Haringey's omission so to put its deceit case to Ms Hines in cross-examination was i......
-
Lorna Howlett (Appellant (1st Claimant) v Justin Howlett (Respondent (2nd Claimant) (1) Penelope Davies and Another (Respondents
...Ltd v Serious Fraud Office [2004] EWCA Civ 104, Abbey Forwarding Ltd v Hone [2010] EWHC 2029 (Ch) and Haringey LBC v Hines [2010] EWCA Civ 1111, [2011] HLR 6. To my mind, however, these decisions are of limited assistance on this part of the case. 26 The Three Rivers case, where the claima......