Respondent claiming right to buy — Appellants failing to process application and commencing possession proceedings — Court asked to give guidance on correct manner of identifying “reasonableness” for purposes of section 84(2)(c) of Housing Act 1985 — Appeal dismissed
The respondent had lived with her mother in a three-bedroom property owned by the appellant local authority. Upon her mother’s death in 2001, the respondent succeeded to the secure tenancy of the property and was entitled, on that basis, to exercise her right to buy a long lease under sections 118 and 119 of, and para 4 of Schedule 4 to, the Housing Act 1985.
In May 2002, the appellants served notice of possession, under section 83 of the 1985 Act, on the ground that the accommodation occupied exceeded the respondent’s requirements. In August 2002, the respondent served notice of her intention to exercise her right to buy. Upon receipt of such notice, the local authority are, by virtue of section 125 of the 1985 Act, under a duty to inform the tenant of the purchase price of the property. The appellants failed to do so and began possession proceedings. Thus, the situation that came before the court at first instance was that described in Bristol City Council v Lovell [1998] 1 WLR 446, in which the court was faced with both the landlord’s claim for possession and the tenant’s partially exercised right to buy, and where it had a procedural or administrative discretion as to the order in which to deal with the cases.
At first instance, the judge found for the respondent. The appellants appealed on the basis, inter alia, that: (i) in considering the reasonableness of the appellants’ possession order, the judge had given disproportionate weight to their failure to process the respondent’s right-to-buy application; and (ii) on the evidence, it was unreasonable for the judge to find that the respondent could not have afforded the alternative accommodation offered by the appellants, but would have been able to implement the right to buy. The court was specifically asked to offer guidance as to the manner in which such a conflict of interests should be approached.
Held: The appeal was dismissed.
The authorities offered little guidance as to how the court should react when it was require to consider a potentially sound case by a tenant for further implementation of his or her right to buy, and a good case for possession on the part of the landlords.
“Reasonableness”, within the meaning of section 84(2)(c), was a prerequisite for an order for possession. On the basis that the issue of “reasonableness” could obstruct the landlord’s claim to possession and that the term was not defined by the suitability of alternative accommodation, the issues to be examined in the tenant’s favour when establishing what constituted “reasonable” included whether: the tenant had a long history at the premises; moving from the premises would be unusually disruptive; the tenant had complied with any covenant and with the terms of the tenancy; and the claim to buy was well founded and genuine, rather than a device to delay the possession proceedings. It might also favour the tenant, although not being necessarily determinative, if the landlords had deliberately failed to process the tenant’s claim in breach of a statutory duty. Considerations in the landlord’s favour included whether: the tenant was in serious or persistent breach of the tenancy; or the landlord’s actions were taken in the wider public interest, such as the appropriate allocation of available housing stock.
In the present case, the judge at first instance had been correct to find that the issue of reasonableness was crucial. In considering that issue, he had correctly attached considerable weight to the landlords’ deliberate decision to thwart the tenant’s right to buy. Moreover, on the evidence, the court could reasonably find that the respondent could fund the purchase of her property by renting out the two extra bedrooms to family members, whereas covering the rental payments on a smaller, but more expensive, property by such means would prove impossible. On that basis, the alternative accommodation offered by the appellants was unsuitable, and the appeal would have to be dismissed.
Jonathan Easton (instructed by DMH, of Brighton) appeared for the appellants; David Brounger (instructed by Ronald Fletcher & Co) appeared for the respondent.
Vivienne Lane, barrister
