Plaintiffs wishing to let flat — Concern to obtain vacant possession on tenant’s departure — Plaintiffs alleging defendant letting agents assuring them that possession obtainable — Tenant failing to vacate and plaintiffs unsuccessful in possession proceedings — Whether letting agents in breach of duty of skill and care — Judgment for plaintiffs
The plaintiffs, Mr and Mrs H, owned the freehold of a ground-floor flat 13 The Avenue, Worcester Park, Surrey. They bought another property close by; and Mr H approached the defendant agents and explained that he wished to let the flat until such time as he could sell it, or make it available for a possible development, so that the capital could go towards the repayment of borrowing on his new purchase. The first occupiers were student sharers, who were granted a licence only by the agents. Thereafter, the flat was let to a Miss B, also introduced by the agents, to whom a lease was granted. The lease was partly in standard form and partly typed in by the agents. The property was described as being let for a term of one year from December 19 1982 under a protected tenancy subject to a notice that possession might be claimed. Clause 5, which was typed in, read to the effect that the landlord notified the tenant that he was an owner occupier and that the letting was under Case 11 to Schedule 15 of the Rent Act 1977. Case 11 provides that “where a person who occupied the dwelling-house as his residence” let it on a tenancy, the court would order possession “where the court is satisfied that the dwelling-house is required as a residence for the owner-occupier…”. Both the tenant and landlord signed the agreement.
The plaintiffs became dissatisfied with the tenant and made it plain that when the one-year term ran out there would be no renewal of the agreement. Solicitors were instructed, but the possession proceedings were not argued on the Case 11 basis as the plaintiffs had no intention to resume possession. A suspended order for possession was made on condition that the tenant paid rent arrears. The plaintiffs argued that there would have been no letting at all if they had been informed that possession could not be recovered at the end of the term. Further, the value of the flat had been substantially diminished as it could not be sold with vacant possession. It was argued on the plaintiffs’ behalf that the defendants had been in breach of their duty of using reasonable skill and care in relation to the letting.
Held Judgment for the plaintiffs.
1. The documentary evidence was of little assistance so that the case had to be considered on oral evidence and in light of the fact that that evidence was given many years after the conversations had taken place.
2. The court was satisfied that the plaintiffs had made it very plain that it was a most important consideration that they should be able to receive the flat back after the expiry of the term.
3. The Case 11 letting was on the defendants’ advice who advised them to sign the agreement. It was not explained to the plaintiffs that if they would want to proceed to obtain possession on the Case 11 ground, they would have to resume possession.
4. That failure by the defendants to explain the circumstances under which possession could have been obtained under Case 11 amounted to a failure of skill in their duty of care to their clients.
David Schmitz (instructed by Porter & Co, of North Cheam) appeared for the plaintiffs; Simon Gill (instructed by Edward Lewis & Co) appeared for the defendants.