Secure tenancy – Right to buy – Possession – Appellant’s rent arrears leading to possession claims during tenancy of respondent local authority property – Appellant making unsuccessful attempt to exercise right to buy (RTB) – County court reinstating tenant’s secure tenancy – Court refusing award of damages as compensation for prior refusal of RTB — Whether respondents acting in breach of statutory duty – Appeal dismissed.
The appellant had been granted a secure tenancy of a property owned by the respondent local authority. He had a history of rent arrears, which led to claims for possession during the life of the tenancy, but he was able to avoid eviction by reducing or paying the arrears.
In March 2003, he submitted a right to buy (RTB) application, under section 118 of the Housing Act 1985, when the maximum discount would have been £38,000 (reduced to £16,000 from 27 March 2003). That application was rejected by the respondents on the basis that the appellant had breached the terms of a possession order. On the same date, the appellant applied in existing possession proceedings for the revival of his secure tenancy and for an order that he had been a secure tenant from 1 September 1999 onwards. That claim was rejected by the district judge at first instance but allowed on appeal. The judge declared that the appellant had been a secure tenant from April 2000 to July 2004 when he was granted an introductory tenancy of another property, as the original property that he had occupied since 1992 was to be demolished. The appellant made an application for the right to buy the new property, which was accepted by notice dated 13 December 2004, but he did not proceed to completion.
Mounting rent arrears on the new property led to possession proceedings. The appellant counterclaimed for damages for breach of statutory duty for the previous failure to grant him the right to buy his former property, which, by the time of the claim, had been demolished. He had been deprived of the maximum discount under section 129 and the opportunity to sell the property at full market value. The county court found that there had been no breach of statutory duty and no right to bring a private law damages claim for breach of statutory duty.
The appellant appealed contending that section 118 imposed on a landlord an absolute and strict duty to give effect to the tenant’s RTB if he was entitled to it; or, alternatively, that the landlord had a strict liability duty to get the answer right or exercise reasonable care in determining a tenant’s eligibility under the RTB scheme.
Held: The appeal was dismissed.
Section 118, as such, did not impose any duty, express or implied, on the respondents. It merely stated the right of the tenant, which was to be established by the procedures under the Act, leading eventually to a duty to convey under section 138.
Section 124(1) (dealing with the landlord’s notice admitting or denying the right to buy) imposed a qualified duty was to state the landlord’s opinion but the landlord was entitled at that stage to err on the side of caution, and deny the right to buy if the tenant’s application was such that the information supplied led the landlord to doubt the authenticity of the application: Hanoman v Southwark London Borough Council [2004] EWHC 2039 (Ch); [2004] 27 EG 129 (CS) considered. The remedy for the tenant was provided by section 181, which enabled him to bring a claim in the county court for a declaration as to his rights. There was nothing in either of those provisions to suggest that parliament intended to create a remedy in damages.
The appellant had argued that the section 181 remedy did not help him because, by the time he had established his right, the property had been demolished. However, the mere fact that in some circumstances the remedy created by the Act was not complete was not a justification for reading into it words that were not there.
Michael Collard (instructed by Pollecoff Solicitors) appeared for the appellant; Nicholas Grundy (instructed by the legal department of Southwark London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
