Jersey Unreported Judgments

Lease - re: appeal.

[2020]JRC130

Royal Court

(Samedi)

6 July 2020

The Parties appeared in person

judgment

the bailiff:

1.        On the 12^th February, 2020, the Petty Debts Court ordered the termination of the tenancy agreement between Hotel Suisse Ltd ("the Landlord") and Madeline Andrews ("the Tenant").  Applying the provisions of Article 14 of the Residential Tenancy (Jersey) Law 2011 ("the Law") the Court delayed execution of the eviction until the 8^th April, 2020 and, amongst other things, ordered the Tenant to pay £580 interest, and arrears of rent. 

2.        By Notice of Appeal dated the 13^th March, 2020, the Tenant appealed to this Court. 

3.        The grounds of that appeal are that the Tenant was not given the opportunity of submitting a defence.  She had one week's notice of the Court date and could not take advice or seek representation.  She also complained that she had not been granted what she called the 'mandatory three months' execution period.  She said that she had no signed agreement with the Landlord.  She asked for the order of the Petty Debts Court to be set aside and for a new hearing that permitted her defence to be taken into consideration. 

4.        The essence, therefore, of the appeal is that there was a failing in the conduct of the hearing before the Magistrate which led to an injustice. 

5.        It is clear from the Act of Court that the Tenant was heard by the Magistrate and we have had the benefit of reviewing the transcript of that hearing.  At the hearing before us we heard both parties at length. 

6.        The Tenant maintains that her tenancy with the Landlord was for a rental of £1,500 per calendar month and that, by the end, the Landlord was charging £1,750 per month, which was a sum that she had never agreed to pay. 

7.        The difficulty with this argument lies in the fact that there was a written agreement (apparently unsigned) which the Tenant accepted that she had received, which provides that 15 Suisse Apartments ("the Property") is let to her as from the 5^th July, 2012, at "a commencing rental of £1,500".  The sentence then follows "the rental shall be subject to review as and when deemed necessary". 

8.        Accordingly, the £1,500 which the Tenant accepts was the agreed rental sum, was subject to review.  It was, in fact, subsequently reviewed, so we are informed, to £1,600 and then latterly to £1,750 per month.  The Tenant informs us that she had paid at least three months of that revised rent before she had to reduce payment initially to £1,000 per month, and since April of this year, to zero. 

9.        It seems to us, therefore, that the tenancy was a monthly tenancy, and at the time that the Tenant fell into difficulties and began to underpay, the monthly rental was in fact £1,750. 

10.      It is not necessary to dilate upon the financial difficulties experienced by the Tenant.  They appear to arise as a result of the end of a long-term relationship with someone who returned to the United Kingdom and who had been providing the income for the family.  The Tenant had to seek a job and it was as a result of this, so she informs us, that she had to reduce her payments from £1,750 per month to £1,000 per month.  Whether or not the rental was £1,500 per month or £1,750 per month there was accordingly a substantial underpayment. 

11.      We asked the Tenant why the rental payments had been reduced to zero and we were informed that she had been advised by more than one Minister who told her to remain in the accommodation that she previously occupied, even though she had told them that she could not afford to do so, and was subject to an eviction notice.  The Tenant told us that she had assumed that as she had wanted to leave (but due to the then restrictions relating to Covid 19 could not do so) and had been told to remain, that she was no longer responsible for the rent.  This is clearly not the case, and it is not obvious to us why the Tenant should have thought that it was. 

12.      The Tenant also felt that she was not allowed fully to explain her circumstances and the various complaints that she had against the Landlord.   These complaints related to the condition of the property, and promises allegedly made, but not kept, about the number of parking places and availability of storage.  The tenant felt that the Magistrate had restricted her enquiry to the contractual arrangements between the Landlord and the Tenant.  It was accepted by the tenant, however, that on any analysis there had been a significant under payment of rent from July 2019. 

13.      As we have said, we have had the benefit of reviewing the transcript of the hearing before the Magistrate.  It is apparent from the transcript that the Magistrate did not, and was not asked to, make any specific findings as to the amount of rental outstanding.  All that the Landlord was seeking at that time was the termination of the tenancy and an order for eviction so that he could secure possession.  It is clear from the transcript that the Landlord intended to quantify outstanding rent and pursue that separately.  Accordingly, the only matter before the Magistrate was whether or not the terms of the tenancy had been breached and eviction should be ordered.  The Magistrate, quite properly in our view, restricted her enquiry as to whether or not the terms of the tenancy had been breached and then asked for information about hardship so that she could exercise a discretion in connection with any order for eviction.  In our view, the procedure before the Magistrate was fair and appropriate in the circumstances. 

14.      At this point we observe that, on the 21^st April, 2020, guidance was issued by the Minister for Children and Housing pursuant to Article 7(e) of the Covid 19 (Residential Tenancy) (Temporary Amendment of Law) (Jersey) Regulations 2020.  Neither those regulations (nor indeed the guidance issued pursuant to them) existed at the time of the order of the Petty Debts Court.  Neither is the guidance intended, nor could it, to operate to release the Tenant from a continuing obligation to pay rent or any other sums due.  Rather it is intended that the guidance, and a landlord and tenant's adherence to it, be taken into account by the Court at its discretion in any order that it may make.  It is expressly the case that the Court is not obliged to take any matters arising in the guidance into account in any order that it would make, and it seems to us that the guidance is of limited, if any, direct application in considering an appeal against an order that was made before the guidance came into existence.  The Court cannot, however, ignore the fact that this appeal arises during the Covid 19 pandemic crisis, and that there are limitations on peoples' ability to secure alternative accommodation or indeed to travel out of the island at the present time. 

15.      The Tenant told us that she wished the tenancy to come to an end and to leave the island but did not have anywhere to stay having been advised, as we have mentioned, to remain in the Property by Ministers.  She had asked about leaving the island but understood that she could not do so. 

16.      As we have said, the basis for the Tenant's appeal was the want of an opportunity to put her arguments and case.  We have afforded the Tenant a full opportunity at the hearing before us to tell us what she would have wished to say to the Magistrate. 

17.      As we have also said above, whilst the tenancy was originally a monthly tenancy at a rental of £1,500 per month it ended up, in our judgement, as a monthly tenancy at £1,750 a month which had been paid by the Tenant for at least three months or so.  No matter what the figure, however, it would have been clear to the Magistrate that there was a significant underpayment.  

18.      Having heard the Tenant fully (although we reflect that many of her allegations are strenuously denied and disputed by the Landlord who we also heard), and whilst we have some considerable sympathy for her personal circumstances, we have heard nothing to persuade us that the Magistrate failed to address the matter properly. 

19.      It was not in dispute that for many months before legal action was taken, the Tenant had unilaterally reduced the amount payable by rent thereby creating a material shortfall for the Landlord.  Accordingly, it is clear that there was a breach of the tenancy agreement and a basis to cancel the agreement and order eviction.  The Magistrate considered matters touching on her discretion.  Accordingly, we dismiss the appeal against the Magistrates' decision in that regard. 

20.      In information before us, the Landlord indicates that there are now substantial arrears of rental (which he calculates at £11,250) as a result of which he is suffering financial hardship.  We have no evidence before us as such and have not heard witness evidence on oath.  We do not have any affidavit of means or supporting documentation from either the Landlord or the Tenant.  We do not think that we are placed at a disadvantage by this, however, given that the Tenant accepts that she has unilaterally underpaid rental, and we have seen copies of communications between the Landlord and his bankers in which he has sought (and we are informed obtained) a capital repayment rest on a mortgage as a result of financial difficulties and we are not asked to make any finding as to arrears. 

21.      In our judgement, whereas in principle it is clear that any arrears of rental should be paid by the Tenant to the Landlord, those arrears must be properly quantified and any defence about the amount or any counterclaim should be heard.  We accordingly direct, as anticipated before the Magistrate, that any sums claimed by way of arrears of rental should be the subject of a claim before the Petty Debts Court by the Landlord.  We make no findings on what merit there may be if any, in claims that may be made by the Tenant. 

22.      Having dismissed the appeal we should still consider whether or not we should stay the execution of the eviction given the current circumstances.  The Tenant clearly wishes to leave the premises and indeed leave the island.  We are within a period affected by the Covid 19 pandemic, but we are, of course, dealing with an appeal against an order made before the relevant Practice Direction (RC20/00) and Guidance issued by the Minister for Children and Housing came into effect. 

23.      In our judgement, execution of the eviction order should be stayed for a period of 30 days from the date hereof.  Subject to quantifications, rent continues to be due and payable to the Landlord. 

24.      We make no order as to costs.

Authorities

Residential Tenancy (Jersey) Law 2011.