Decided case reports- caselaw references from jeffrey

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    Decided case reports- caselaw references from jeffrey

    This thread will be a stack of caselaw references/links, so that all LZ members have access to it.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    #2
    LZ: please delete any other posts which members add to this thread.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    Comment


      #3
      Letting to a minor

      Alexander-David v. Hammersmith & Fulham LBC (http://www.bailii.org/ew/cases/EWCA/Civ/2009/259.html)

      The Council let to a minor. A minor cannot hold a legal estate or interest. Consequently, the Council could not terminate the letting.

      The Court of Appeal held that the Council became "both lessor and trustee, and in the former capacity of being not merely a party to the breach of trust, but the instigator of the breach. In these particular circumstances...service of notice to quit only on the minor beneficiary of the trust was not sufficient to terminate the tenancy that was being held by the [Council] as trustee on her behalf."
      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
      4. *- Contact info: click on my name (blue-highlight link).

      Comment


        #4
        Deposit protection- s.213 etc. of Housing Act 2004

        Draycott v. Hannells Letting Limited (http://www.bailii.org/ew/cases/EWHC/QB/2010/217.html)

        Where L protected an AST deposit but this was later than within the 14 days which the Act requires, T cannot claim the 3x penalty.

        The High Court (QBD) held that "The outcome...turns on whether the 14 day requirement is, or is not, a part of the initial requirements of an authorised scheme. If it is not, then when the deposit is paid into the scheme later than 14 days from its receipt by the landlord, but before the tenant commences proceedings, then the court cannot be satisfied under s.214(2)(a), and therefore the court will not be able to make an order under s.214(3) or (4)."
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


          #5
          Does L have a duty to mitigate rent loss?

          Reichman and Dunn v. Beveridge and Gauntlett (http://www.bailii.org/ew/cases/EWCA/Civ/2006/1659.html)

          No. L has no duty to mitigate rent lost by T quitting early (= during a letting's fixed term). Such T is liable for the whole term, unless L impliedly accepts T1's early surrender by re-letting the premises to T2 (whereupon T1's liability ends by operation of law).

          "There is...no case in English law that shows that a landlord can recover damages from a former tenant in respect of loss of future rent after termination, and there is at least one case which decides that he cannot. In those circumstances, either damages are not an adequate remedy for the landlord, or at least the landlord would be acting reasonably in taking the view that he should not terminate the lease because he may well not be able to recover such damages. In principle, moreover, if the landlord chooses to regard it as up to the tenant to propose an assignee, sub-tenant or, if he wishes, a substitute tenant under a new tenancy, rather than take the initiative himself, that is not unreasonable, still less wholly unreasonable."
          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
          4. *- Contact info: click on my name (blue-highlight link).

          Comment


            #6
            L does not 'discriminate' when evicting T lawfully

            Lewisham LBC v. Malcolm (http://www.bailii.org/cgi-bin/markup...method=boolean)

            If T (disabled) is evicted by L, on grounds of breach of tenancy unrelated to the disability, T is not being treated less favourably than a non-disabled T would be. Consequently, there is no 'discrimination' within the Disability Discrimination Act 1995.

            "...there would have been a causal link between the reason and the disability, if...the subletting was in some way linked to [T's] schizophrenia. The treatment to which he was subjected was eviction, and the reason for this can fairly be characterised as being that he had sublet. However, because...Lewisham would [not] have treated any other secure tenant who had sublet differently from [T], there could be no discrimination..."
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

            Comment


              #7
              Earl Cadogan and Cadogan Estates Limited v. Sportelli (http://www.bailii.org/ew/cases/EWCA/Civ/2007/1042.html)

              The Court of Appeal decided the way in which one values the f/r in the case of leaseholders seeking to extend a lease or (collectively) enfranchise. 'Hope value' cannot be added-in if other factors effectively cover it.
              JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
              1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
              2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
              3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
              4. *- Contact info: click on my name (blue-highlight link).

              Comment


                #8
                The law- not the parties- decides if it's tenancy or a licence

                Street v. Mountford (http://www.bailii.org/cgi-bin/markup...method=boolean)

                Even if L tries to create only a licence, and uses appropriate terminology, the law may treat the letting as a tenancy. This decision indirectly led to the Housing Act 1988 and its scheme of Assured Tenancies (AST and SAT).

                "...the agreement conferred the right of exclusive possession on [T, who]...was granted the right to occupy residential accommodation. The landlord did not provide any services or attendance. ...[T] was not a lodger...The only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent. Sometimes it may be difficult to discover whether on the true construction of an agreement, exclusive possession is conferred. Sometimes it may appear from the surrounding circumstances that there was no intention to create legal relationships. Sometimes it may appear from the surrounding circumstances that the right to exclusive possession is referable to a legal relationship other than a tenancy. Legal relationships to which the grant of exclusive possession might be referable and which would or might negative the grant of an estate or interest in the land include occupancy under a contract for the sale of the land, occupancy pursuant to a contract of employment or occupancy referable to the holding of an office. But where as in the present case the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy."
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #9
                  In favour of T, 'L' is bound by letting even if not owner

                  Bruton v. London and Quadrant Housing Trust (http://www.bailii.org/cgi-bin/markup...method=boolean)

                  If someone (X) grants a 'tenancy' but is not lawfully competent to do so, then (in favour of T) X is bound by it.

                  "[T's case] depends upon his establishing that his agreement with [X] has the legal effect of creating a relationship of tenant and landlord between them. That is all. It does not depend upon his establishing a proprietary title good against all the world...It is not necessary for him to show that [a vendor] had conveyed a legal estate to [T]."
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

                  Comment


                    #10
                    Estate of deceased T can 'revive' T's tenancy

                    Austin v. Southwark LBC (http://www.bailii.org/cgi-bin/markup...method=boolean)

                    Where a secure tenancy (under Housing Act 1985) was ended by T's breach of a conditional suspended Possession Order, and T thereby became a tolerated trespasser, but T retained a right to seek postponement of the possession date so as to allow him to remedy the default (which would 'revive' that tenancy**), the right to apply passed- on his death- to his Estate which could exercise it.

                    **- note that, under Part 2 of Schedule 2 to the Housing and Regeneration Act 2008, not operative retroactively, such T would not revive the old tenancy but (on remedying the default) would now acquire a replacement tenancy in those circumstances.

                    The Supreme Court held that "...that the former secure tenant has died does not deprive the court of its jurisdiction to exercise the power conferred on it by section 85(2)(b) of the 1985 Act to postpone the date of possession under a possession order. It follows that...the estate of the person who was served with a claim for possession [can] apply under CPR 19.8 for the date for possession to be postponed."
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment


                      #11
                      What is 'negligence'?

                      Donoghue v. Stevenson (http://www.bailii.org/cgi-bin/markup...method=boolean)

                      To sue successfully for the tort of negligence, one needs to prove:
                      a. a duty of care;
                      b. breach of that duty; and
                      c. resulting damage.

                      in the House of Lords decision, Lord Atkin said, "Who is my neighbour?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
                      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                      4. *- Contact info: click on my name (blue-highlight link).

                      Comment


                        #12
                        Section 20ZA(1) of LTA 1985 gives the LVT power to "dispense with ….the consultation requirements", not "[to dispense] with the statutory consequences of non-compliance".

                        Daejan Investments Ltd v. Benson & Others (http://www.bailii.org/cgi-bin/markup...method=boolean)

                        The LVT had held that Daejan failed to comply with the Service Charges (Consultation Requirements) (England) Regulations 2003, SI 2003 No. 1987, in respect of works to be done at a block of flats and declined to conclude that it was reasonable to dispense with the consultation requirements- so it made no order for dispensation under s.20ZA(1) of the Landlord and Tenant Act 1985 as amended. Daejan had failed in its claim to recover some £270,000 from the Respondents, five long leaseholders of flats; recovery from them was "capped" at £250 each. In reaching this conclusion, the LVT held that the financial effects of the grant or refusal of the application for dispensation on the landlord or tenant were irrelevant and were not to be taken into account. Further, the LVT held that Daejan 's failure to comply with the Consultation Regulations had caused the Respondents "substantial" or "significant" prejudice.

                        The Court of Appeal has upheld the Lands Tribunal's upholding of the LVT's decision- so Daejan lost again.
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                          #13
                          L cannot be made to pay the 3x penalty if T's AST deposit is protected late.

                          Potts v. Densley and Pays: http://www.bailii.org/ew/cases/EWHC/QB/2011/1144.html

                          The Judge held that "As Tiensia has now determined, a landlord can comply with the requirements of section 213(3) and (5) well after the inception of the tenancy, indeed at any point until the hearing of the application under section 214(4)...[L] (i.e. the person receiving the deposit paid in connection with a shorthold tenancy) continues to be "the landlord" for the purposes of the statute whether the tenancy has been determined or not and remains under a continuing obligation to comply with the initial requirements of the scheme and to provide the prescribed information. ..[L] had until the date of the hearing of [T's] section 214(4) application to comply with the provisions of section 213(3); and having secured the deposit before the hearing, albeit after the determination of the tenancy,...had a complete defence to the section 214(4) claim."
                          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                          4. *- Contact info: click on my name (blue-highlight link).

                          Comment

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