England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM STAINES COUNTY COURT
(His Honour Judge Parry)

		The Royal Courts of Justice The Strand London Friday 3 May 2002

Friday 3 May 2002

1. LADY JUSTICE ARDEN: This is an application for permission to appeal from the order dated 20 February 2002 of His Honour Judge Parry sitting in the Staines County Court ordering possession of 124 Burns Avenue, the residence of Mr Martin-Samos, the applicant, within 20 days.
2. Mr Martin-Samos seeks permission to appeal on the ground that the judge was wrong in saying that the current tenancy is valid. Alternatively he contends that the council should have amended their copy of the agreement dated 6 June 1997. In addition, Mr Martin-Samos submits -- and this is his primary submission -- that the respondent did not act compatibly with Article 8 of the European Convention on Human Rights. He contends that he has made significant improvements to the property. In his grounds of appeal he states that the value of those improvements is £25,000. He also points out that he is seeking to exercise the tenant's right to buy the property and that he is in poor health and a senior citizen. He also wants a stay pending appeal.
3. I intend to deal with the permission application in two parts, first the terms of the tenancy point and then secondly the Convention point.
4. The material events are as follows. On 26 May 1997 Mr and Mrs Martin-Samos signed a tenancy agreement with Hounslow for 124 Burns Avenue. Mr Martin-Samos was then asked to sign again because for some reason Hounslow did not receive the document. What he was asked to sign was indeed a fresh copy of the tenancy agreement. He did this on 6 June 1997. There was a space in the agreement for his wife's name, indicated by an X. Mr Martin-Samos took the agreement away. The printed terms of this agreement were the same as those of the earlier agreement in all material respects.
5. On 24 June 2000 both Mr and Mrs Martin-Samos exercised the right to buy the property. On 25 August 2000 a letter purporting to be signed by Mrs Martin-Samos and relinquishing any interest in the property was sent to the council. There was a further letter to the same effect on 26 August 2000. Mrs Martin-Samos contended that these letters were not actually signed by her. At the end of August 2000 Mrs Martin-Samos left the premises. On 4 September 2000 she gave notice terminating the tenancy. Hounslow, the respondent, treated the parties as joint tenants.
6. After Mrs Martin-Samos left Mr Martin-Samos asked Hounslow to transfer the tenancy into his sole name. This was refused by the respondent because Mrs Martin-Samos did not consent. In March 2001 Mr Martin-Samos' solicitors took the point that he was in fact the sole tenant. The judge heard several witnesses. He analysed the position closely in his judgment in the following terms:

"I take the view that there was no termination of the May agreement by the existence of the later agreement, as it is, in effect, dated the 3rd June, or to start on the 3rd June, which is substantially dated 6th June 1997. It appears to me perfectly clear that Mrs Martin-Samos was not the authoress of the letters which were produced to the court, dated 25th and 26th August 2000. She denies it. Who was the author? That does not really seem to me to be of any particular importance. I take the view that the estoppel point is a non-starter. There is no need to rule whether these documents were forged or not. Mr Martin-Samos denies it steadfastly and that is about as far as it need go. The thrust of both documents is to the effect that Mrs Martin-Samos is relinquishing claims against her husband and it seems to me, even applying the broadest of brushes, the thrust of the documents does not surrender her interest in the May 1997 lease. The point was made perfectly validly, it appeared to me by counsel for the claimants, that there is reference to her not pursuing the custody of her son, aged 11. In fact in the event he left with her and, as far as I know, they still reside together. It is not for me, nor indeed for any person in this court, to become an instant expert on handwriting, but it has to be said that there are certain similarities in the typewriting of those documents with other documents that Mr Martin-Samos accepts that he wrote. There is a somewhat unusual personalised layout of the date which is also repeated but beyond indicating that I do not think it is beneficial to go into it in any more detail.

The burden is therefore on the claimants to establish their claim. It is for the defendant to establish the validity of the tenancy agreement in June 1997 in his sole name. I take the view that the claimants have succeeded, on the balance of probability, and the defendant has not. I am driven inevitably to the conclusion that the June document was incomplete and effectively a draft required by one of two offices of the claimants, probably in ignorance of the fact that a valid agreement, dated 21st May 1997, had been completed. The left hand did not know what the right hand was doing."

7. There is no real prospect, in my judgment, of this analysis by the judge being successfully challenged on appeal. The judge was entitled to come to these views on the evidence which he heard and he was in a far better position to assess the evidence, having heard the witnesses.
8. The net result of the judge's conclusions on that point was that there was a joint tenancy and, accordingly, as a matter of law it was terminated when Mrs Martin-Samos gave notice terminating it. At that point, as a matter of law, Mr Martin-Samos was not thereafter entitled to a secure tenancy. This is established by an authority in the House of Lords, Hammersmith & Fulham LBC v Monk [1992] 1 AC 478, which is binding on this court.
9. So I therefore turn to the Convention point, which is effectively that the order is in breach of Mr Martin-Samos' rights under Article 8 of the European Convention on Human Rights. This provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence;

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

10. Hounslow was represented before the judge by Mr Hutchings of counsel. Hounslow accepted that Article 8 applied, and indeed that was a correct concession in the light of a decision of this court to which the judge did not refer, namely Harrow LBC v Qazi [2001] EWCA Civ 1834. Mr Hutchings proceeded to submit that the Human Rights Act 1998 did not apply because the contract of tenancy was entered into before the Act came into force. It is not necessary for me to do more than observe that of course both Hounslow and this court are public authorities and that the act of termination, the bringing of the proceedings and the obtaining of the order were after the Act was commenced. In any event, Mr Hutchings argued that Article 8(2) applied because of the statutory framework, and he referred to the decision of this court in Sheffield City Council v Smart [2002] EWCA Civ 04 The statutory framework counsel summarised as follows: first, a lack of security of tenure where one joint tenant terminates the joint tenancy; secondly, the presence of restrictions on the court's power to make possession orders except where section 89(1) applies, which it does not in this case; and, third, the homelessness provisions. Mr Hutchings submitted that the homelessness provisions in the 1996 Act ensure that accommodation is secured for the most vulnerable members of society, and indeed, I would add, it gives them some priority as respects accommodation.
11. The question under Article 8(2) is not a point which has been considered by this court. The judge dealt with the point extremely briefly at page 7 of his judgment, when he says this:

"Where there is a joint tenancy, the joint tenant can give a notice to the Local Authority, which is enforceable against the other joint tenant. Hammersmith & Fulham v Monk is clearly the leading case on that topic in 1992. There is no question of this being disrupted by EEC legislation or any other legislation. Human Rights do not mean that all the procedure and legislation in English Courts goes out of the window."

12. However, the judge gave 28 days before Mr Martin-Samos had to give up possession and in doing so he relied on section 89 of the Housing Act 1980.
13. Mr Martin-Samos by this appeal seeks, of course, to stay in the property indefinitely and I have to consider whether there is a real prospect of success on appeal. I leave aside for the moment the statutory framework which, as I said, has not yet been the subject of decision by this court in the context of Article 8, but the view which I have reached is that there is no real prospect of success on appeal in arguing that in the circumstances of this case Mr Martin-Samos should be able to stay in the property indefinitely. The property is a three-bedroomed flat and Mr Martin-Samos is now living on his own, thus occupying local authority accommodation which is much larger than he needs. This point is also made by the judge at page 7, lines 9-12 of the judgment. There is, of course, great pressure on local authority accommodation. Second, Mr Martin-Samos had already had the property for fifteen months since the date of termination. Moreover, the judge was not satisfied that improvements to the value mentioned by Mr Martin-Samos had been made. What the judge said was this (page 7):

"What he [Mr Martin-Samos] says now is, "Well, I have done an awful lot of work on this property." He was pressed as to precisely what work he had done. There was clearly some work that has been completed on the premises but he was unable to specify it in any detail. He says that he owes [I think that must mean 'is owed'] some £15,000 but was unable to particularise really to what this referred."

14. I have already drawn attention to the fact that Mr Martin-Samos now places a much larger figure on the improvements. He has referred me to a bundle of invoices of purchases from builders' merchants and the like in bundle B. He assures me that these documents were before the judge, but it is not for me to go behind the judge's finding on this point. There is no analysis of the bills and therefore there is no basis upon which I can conclude that the judge's view on the improvements was against the weight of the evidence or that there would be a realistic chance of success on that point.
15. Next, the judge gave Mr Martin-Samos 28 days. The local authority recognised that Mr Martin-Samos was entitled to a period of grace and, moreover, that he was probably in priority need. At paragraph 13 of the council's written submissions to the judge the following was said:

"[Hounslow's] position is that, in the circumstances of this case, [Mr Martin-Samos'] right to respect for his home confers no more than the right to a reasonable period of grace prior to his eviction. [Hounslow] wishes to provide [Mr Martin-Samos] with alternative accommodation. His present accommodation is too large for his needs."

16. So there was a specific assurance to the court that the council wished to provide Mr Martin-Samos with alternative accommodation. That is, no doubt, accommodation more appropriate to his needs. I have taken it that the local authority continues to give that assurance. Moreover, the position is that, since the judge gave his judgment and made this order, Mr Martin-Samos has had a further three months in the property.
17. In all the circumstances, it seems to me that Mr Martin-Samos would have no success on appeal in his argument that he was entitled by virtue of Article 8 to stay in the property indefinitely. He has had more than adequate time in which to make other arrangements for his accommodation, and accordingly I dismiss this application.
ORDER: Application refused. Copy of the transcript to be sent to the applicant at public expense. (Order not part of approved judgment)