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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BASILDON COUNTY COURT
District Judge Chandler
5BQ01377
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE MOSES
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BASILDON DISTRICT COUNCIL |
Appellant |
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- and - |
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WAHLEN |
Respondent |
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Mr J Summers (instructed by Messrs Newman & Maxwell) for the Respondent
Hearing dates : 3rd March 2006
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Crown Copyright ©
Lord Justice Neuberger :
The statutory provisions
i) The original tenant must have died between 6 and 12 months before the section 83 notice relying on this ground is served on the successor tenant;
ii) The property concerned must be "more extensive than…reasonably required by the [successor] tenant";
iii) Suitable alternative accommodation is available to the successor tenant, and, in order to be suitable, that accommodation has to satisfy certain requirements with regard to the successor tenant's needs and means, place of work, proximity to family etc;
iv) It must be reasonable in all the circumstances (which specifically include the age of the successor tenant, the period he has resided in the property, and the extent, if any, to which he supported financially the original tenant) to make an order for possession.
The facts of this case
The correct procedural approach
"If a judge before whom the matter comes, was able to conclude having heard an outline of the circumstance, that having regard to the nature of the local authority's case, it would not be proper to make an order for possession, then there is no purpose in hearing the claim for possession and the matter could be dealt with on the claim for an injunction. However if the judge took the view that the case is one which notwithstanding that the tenant may have an established right to buy, he considers that it could still be proper to make an order for possession, then he should be able to adjourn the claim for an injunction until he has determined the claim for possession. If the judge was in doubt as to which side of the line the case falls, it would be necessary to hear both claims and only then make the determination as to which is the more appropriate order to make."
The balancing exercise to be carried out
"A factor which, in my view, is likely to tip the balance one way or another is that, if the right to buy prevails, then the landlord, if a local authority, loses the premises as part of its housing stock for ever whereas, upon a tenant being given alternative accommodation by a local authority, in many cases the right to buy on the tenant's behalf will be once again available after an appropriate further period and will, in alleged under-occupation cases, then apply to premises which will less deplete the local authority's available supply of space."
Resolution in Ground 16 Cases
The District Judge's Judgment in the Instant Appeal
Resolution of this appeal
Lord Justice Moses