Could a tenant’s mistaken belief that their tenancy’s repair obligations fell upon them be used as the basis of an estoppel sufficient to defeat a claim for possession? This was the question that Mr Recorder Meade QC answered in the negative in (1) Milo Kerr as Trustee of the Haie Estate (2) Pamela Travis as Trustee of the Haie Estate v Christian Maass [2019] EWHC 95 (Ch).
Mr Maass lived at Arams Farmhouse, a property which had been previously occupied by his mother and stepfather and which he considered his family home. The basis of the occupation was disputed. The rent was substantially below market rent (being some £155 per month) but it was agreed that Mr Maass would carry out repairs and maintenance (as had his stepfather before). In 2017, possession was sought relying on a section 21 notice terminating an assured shorthold tenancy.
An “egregiously and inexcusably late” amendment was allowed pleading a proprietary estoppel by acquiescence. It was argued that Mr Maass would not have carried out the repairs and improvements that he had done had he understood his interest to be only that of an assured shorthold tenant.
In the alternative, if he were an assured shorthold tenant, there was a counterclaim for disrepair which was said to have arisen as a result of the landlords’ failure to comply with the repairing obligations imposed by section 11 of the Landlord and Tenant Act 1985 (the 1985 Act).
Although Mr Maass thought he had something more than an assured shorthold tenancy, the landlords were not aware of this fact. The judge also found that they did not realise that the repairing obligations were governed by the 1985 Act.
The argument that there was a proprietary estoppel failed on the facts. Further, the mistaken belief on which Mr Maass sought to rely was as to his obligation to carry out repairs rather than his proprietary rights.
Mr Recorder Meade QC said: “It seems to me that it will be very rare, if it ever happens, for it to be unconscionable for A to enforce a right because of a belief on the part of B in relation to that right of which A had no knowledge at all, merely because B was under a misapprehension as to something significantly different.”
Although the attempt to assert proprietary estoppel failed, the counterclaim did succeed. The judge considered Wallace v Manchester [1998] 3 EGLR 38 and Earle v Charalambous [2006] EWCA Civ 1090 before assessing quantum at £1,250 per annum for a “general, significant but not overwhelming lowering of enjoyment”.
Elizabeth Haggerty is a barrister at Lamb Chambers
