Eflash - [2024] EWCA Civ Hajan v. Brent LBC, Kerr v. Poplar Housing
Mr Toby Vanhegan and Ms Stephanie Lovegrove acted for Mr Hajan in the Court of Appeal. Toby acted for him in the county court.
In Hajan, the Court of Appeal held that the authority was entitled to amend their Claim to rely upon the absolute ground for possession, even though the notice was served after the Claim was issued.
In Kerr, the Court of Appeal held that the housing association could rely upon ground 7A in relation to the enforcement of the warrant, even though the notice was served many years after the possession order had been granted
Hajan v. Brent LBC.
In 2010 Brent granted Mr Hajan a secure tenancy of a one bedroom flat. In June 2022 he went to the Brent Civic Centre where he threatened staff and caused damage to the building. On 5 August 2022 he pleaded guilty to criminal damage and was sentenced to 200 hours of community service on 7 September 2022. On 30 November 2022 Brent served Mr Hajan with a notice seeking possession which relied upon grounds 1 and 2 in Schedule 2 to the Housing Act 1985. The Claim for possession was issued on 21 December 2022.
On 4 May 2023 Brent served Mr Hajan with a second notice seeking possession. That notice relied upon the conviction and therefore the absolute ground for possession contained in section 84 of the 1985 Act. On 6 June 2023 Brent applied to amend the Claim to include the absolute ground. On 5 July 2023 DDJ Samuel granted permission. Mr Hajan sought permission to appeal. Permission was granted by HHJ Luba KC who transferred the appeal to the Court of Appeal. On 12 January 2024 the Court of Appeal accepted the transfer and the appeal was listed to be heard with the Kerr case because of the similarities.
In the Court of Appeal, Mr Hajan argued that the effect of the 1985 Act was that the landlord must begin proceedings after the date specified in the notice. Amending existing proceedings does not comply with that requirement, because the proceedings have already begun. The Court held that this interpretation was wasteful of costs and court time, and results in an unnecessary duplication of effort. It was possible to interpret "proceedings" as referring to an amended claim, and that those proceedings are "begun" when the landlord obtains the assistance of the court in securing possession on the ground of satisfaction of section 84A. Accordingly, the Court applied a purposive interpretation and varied the order below so that the amendment took effect on the date that it was granted, and therefore the proceedings were begun on that date.
Mr Hajan is seeking permission to appeal to the Supreme Court.
Kerr v. Poplar Housing.
Mrs Kerr was an assured tenant under the Housing Act 1988. On 7 February 2017 Poplar were granted a possession order because of arrears of rent. On 19 November 2020 Mrs Kerr's son pleaded guilty to possession of an imitation firearm with intent to cause violence and was sentenced to 14 months' imprisonment at the Crown Court at Wood Green. In February 2021 Poplar served Mrs Kerr with a notice seeking possession which relied upon ground 7A. Poplar then applied to vary their suspended possession order to an outright order. On 16 February 2022 DJ Bell varied the order to an outright order relying upon section 9 of the 1988 Act. Mrs Kerr appealed. HHJ Luba KC dismissed the appeal on the basis that the order could be varied, not under section 9, but by virtue of the liberty to apply provision. Mrs Kerr appealed to the Court of Appeal which granted permission.
The Court held that there was power under section 9 to vary the order. It was held that section 9, like section 85 of the 1985 Act, confers on the court a continuing jurisdiction until execution of the possession order, to re examine the terms of any suspension in light of the circumstances that exist at the date of the court's review. Accordingly, DJ Bell had the power to discharge the conditions of suspension, and postpone the original date of possession to a new and later date. This had the effect of an outright order for possession.
