Preliminary point — Validity of defense as matter of law — Tenant exercising right to buy house occupied as dwelling — Tenant applying for injunction to enforce sale — Local authority defended application on grounds of alleged hardship — Whether court having discretion to refuse discretionary remedy of injunction — County court striking out defence — Court of Appeal dismissing appeal — Court having no discretion to withhold injunction
The tenant occupied a dwellinghouse at 96 Carlyle Road, Manor Park, London E12, since 1984. She exercised her right to buy the house under Part V of the Housing Act 1985 in 1990. When the local authority as landlords, refused to convey the freeholder to her in 1991 after having issued their counter notice, she applied to the court for an injunction requiring the council to complete the sale. At first instance, the court struck out the council’s defence to the tenant’s application. The council appealed. The council argued, inter alia, that it was not a case where, on the pleadings, it “was plain and obvious that the claim…cannot succeed:” Hambros Life Assurance v White Young & Partners [1985] 2 EGLR 165. If that could not be established then the court should always lean in favour of granting the defendant leave to argue his point.
The council maintained that in the circumstances of the case it would be unreasonable for the court to grant the injunction to the tenant because the court had the discretion to refuse an order for specific performance if it entailed hardship to third parties. The judge at first instance had relied on Dance v Welwyn Hatfield District Council [1990] WLR 1097 which laid down that once a tenant exercised the right to buy he had an equitable interest in the house and was entitled to an injunction under section 138(3) and that there was no ground on which an injunction could be refused. Section 138(1) of the 1985 Act provided that where a secure tenant had claimed to exercise the right to buy and that right had been established then, as soon as all matters relating to the grant and to the amount left outstanding; or advanced on the security of the dwellinghouse had been agreed or determined, the landlord should make to the tenant a grant of the house. Under section 138(3) that duty was enforceable by an injunction. The question was whether the court had a discretion to refuse an injunction.
Held The council’s appeal was dismissed.
1. Once the conditions in section 138(1) had been satisfied, the tenant was entitled, as of right, to enforce the landlord’s duty to convey the property to her so that the court had no discretion to withhold the injunction from the tenant. Although it might be going too far to say that there could never be any ground for withholding injunctive relief, it was impossible to conceive of a situation where that would be the case.
2. Section 118 of the 1985 Act created the right to buy and expressed the landlord’s duty in unequivocal and mandatory terms. The council argued that the court had a discretion on such an application as the present akin to that on application for specific performance to refuse relief, for example, on the ground of hardship to third parties. However, Parliament had not intended general considerations of hardship to afford any ground to refuse an injunction under section 138(3).
3. When the right to buy legislation was introduced in 1980 some councils had been opposed to parting with publicly owned accommodation to those exercising their right to buy. The court would do violence to Parliament’s intention if it failed to recognise that the Act’s intention was to ensure the tenant’s right to buy against reluctant landlords.
David Watkinson (instructed by the solicitor to Newham London Borough Council) appeared for the appellant; David Brook (instructed by Kenneth Elliott & Rowe, of Romford) appeared for the respondent.
