Possession – Writ of possession – First claimant selling property to fifth defendant and granting lease pending completion of sale – First claimant resiling from arrangements and refusing to give up possession as agreed – Fifth defendant obtaining possession order and writ of possession – First claimant evicted – Whether first claimant entitled to order reinstating her pending determination of application to set aside possession order – Whether writ of possession validly issued – Whether vitiated by failure to give first claimant notice of intended eviction – Claim dismissed
The first claimant entered into a transaction with the fifth defendant whereby she exercised her statutory right, under the Housing Act 1985, to buy the property of which she was a secure tenant and contracted to sell it on to the fifth defendant at a profit of £20,000. That sale was not to be completed for three years, so that the first claimant would not be obliged to repay the discount that she had obtained on her purchase of the property. In the meantime, the first claimant was to grant a lease of the property to the fifth defendant with vacant possession. The necessary documents were signed in August 2004, although the first claimant had until the end of that month to vacate the property.
The first claimant sought to resile from the arrangement and refused to give up possession. The fifth defendant obtained a possession order against her in January 2011 (see Fineland Investments Ltd v Pritchard [2011] EWHC 113 (Ch); [2011] 06 EG 102 (CS)) and sent her a copy. The first claimant did not relinquish possession on the required date in March 2011. Instead, the fifth defendant received a copy of a claim form by which the first claimant and her son, the second claimant, sought damages and possession of the property and the third defendant claimed to be its owner pursuant to an alleged agreement of June 2004. The first claimant applied to have the possession order stayed or set aside; a hearing was fixed for May 2011.
Meanwhile, the fifth defendant obtained a writ of possession. It considered that it did not required the court’s permission to issue the writ since the case fell within r 7 of RSC Ord 113 as a possession claim against trespassers, as defined in CPR 55.1(b). The writ of possession was enforced and the first and second claimants were evicted in April 2011.
The claimants applied to the court for an order requiring the defendants to allow them to enter or re-enter the property. The first claimant submitted that the writ of possession was unlawful and that she should have been given notice of the application for that writ and of the intended eviction.
Held: The claim was dismissed.
(1) The fifth defendant had brought a possession claim against trespassers within r 7 of RSC Ord 113. It was a claim for the recovery of land alleged to be occupied by persons, other than exisiting or former tenants or subtenants, who had entered or remained on the land without the consent of a person entitled to possession of it, within CPR 55.1(b) and CPR 55.2(1)(b). Although the first claimant had not entered as a trespasser, she had remained in possession as a trespasser after August 2004. She was not a tenant or subtenant because her secure tenancy had ended when she took a transfer of the freehold from the local authority. Although she had thereafter been a licensee of the fifth defendant for a period, that did not mean that the possession claim had to be dealt with as a claim by a licensor or former licensor under CPR 55.2(1)(a)(iii), rather than a possession claim against trespassers within CPR 55.2(1)(b). The two provisions were not mutually exclusive; the former was concerned with the party bringing the claim and the latter with the party against which the claim was brought, and a single claim could come within both provisions. The fifth defendant’s claim qualified as a possession claim against trespassers notwithstanding that it had also claimed other relief in the same proceedings. The policy behind the special rule in r 7 of RSC Ord 113 was that claims against trespassers raised different issues and were to be dealt with in a different way from other possession claims and, in particular, without the need for permission. There was no good policy reason for treating the fifth defendant’s possession claim differently merely because it also claimed other relief in those proceedings. Accordingly, the writ of possession had been properly issued notwithstanding that the fifth defendant had not sought the court’s permission for that purpose.
(2) The writ of possession was not otherwise invalidated merely by the failure to give notice to the first claimant of the intended eviction. Neither the High Court rules nor the forms for the writ of possession required notice to be given to the party against which the order for possession was to be executed. The writ of possession had been validly issued and the execution of the order for possession was not procedurally defective. That order was enforceable against the second claimant since he had no rights against the fifth defendant entitling him to retain possession. As to the third claimant, there was no evidence that he had been in possession of the premises on the eviction date and, in so far as he relied on the alleged contract with the first claimant in June 2004, that contract was not binding on the leasehold interest held by the fifth defendant, on which the fifth defendant’s entitlement to possession was founded, because it had not been protected by registration at the Land Registry.
The first claimant appeared in person; Marie-Claire Bleasdale (instructed by Bude Nathan Iwanier) appeared for the first, fifth and sixth defendants; Francis Bacon (instructed by Barlow Lyde & Gilbert LLP) appeared for the third defendant; James Purchas (instructed by Fishburns LLP) appeared for the fourth defendant; the second and seventh defendants did not appear and were not represented.
Sally Dobson, barrister
