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Protection from Eviction Act

This page deals with the following points:
  • Where premises are let partly for residential purposes and partly for business purposes, such as a lease of a shop with a flat above, does this section prevent forfeiture otherwise than by proceedings in court where the tenant is residing in the part let for residential purposes?
  • Accommodation in a hostel.
  • Compatibility of s3 of 1977 with Article 8.
  • Licence of accommodation secured by local authority for a homeless person.

Forfeiture

Tenant of shop with flat above

Key statutory provision

Pirabakaran v Patel
[2006] EWCA Civ 685

Section 2 of the Protection from Eviction Act 1977 provides:
    "Where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them."
Question: Where premises are let partly for residential purposes and partly for business purposes, such as a lease of a shop with a flat above, does this section prevent forfeiture otherwise than by proceedings in court where the tenant is residing in the part let for residential purposes?

Answer: Yes. The words "let as a dwelling" in s2 mean "let wholly or partly as a dwelling". They do not mean "let exclusively as a dwelling". (See in particular Wilson LJ at paras 5 and 34). The CA reached this conclusion based upon earlier interpretations of these words in the Rent Acts, fortified by arguments under the ECHR.

The tenant in the case had a lease of a shop with a flat above. The lease contained a forfeiture clause in standard form permitting L to forfeit by re-entering the premises "or any part thereof". T conducted a retail business on the ground floor and resided on the first floor. The first floor was self-contained with its own separate entrance. When T got into arrears of rent L purported to forfeit by causing bailiffs to change the locks of the shop on the ground floor. L took no steps to take possession of the flat and T remained in occupation. There were subsequent possession proceedings relating to the flat and the judge made an order for possession. However, the CA overturned that decision holding that as s2 applied to the premises the original forfeiture was invalid. The lease of the whole was still in existence.


Hostels

Rogerson v Wigan Metropolitan Borough Council
[2004] EWHC 1677 (QB).

Facts

C and his partner were given a licence of residential accommodation by a local authority whilst it made enquiries to see whether it had a duty to house them under s188 of the Housing Act 1996. They were given accommodation in a flat. It was not part of a purpose built hostel but had originally been a block of flats. There were seven two bedroom flats, one single bedroom flat, and a ground floor flat that was occupied by a warden. Each unit contained, in addition to the bedrooms, a living room, bathroom, toilet and a kitchen equipped with necessary cooking facilities. The judge found that the bedroom doors had individual locks. The occupier was allocated the bedroom and would share the rest of the unit with anyone who happened to be in the other bedroom. The resident warden had access into each and every unit and to each bedroom within any unit. It was an express term of the licence that occupiers could be moved from one unit of accommodation to another at the will of the authority, and they could be required to share their unit with a stranger. There were various allegations that C failed to comply with certain conditions of the licence and the authority served a notice to quit, which did not comply with the four-week requirement in s5 of the Protection from Eviction Act 1977. C and his partner were subsequently evicted without a court order. His claim for damages was dismissed by the judge and he appealed.

Held

Appeal dismissed. The accommodation was a hostel within the meaning of s622 of the Housing Act 1985 in that it was a building in which was provided residential accommodation otherwise than in separate and self-contained sets of premises. This meant that the licence was excluded from protection of the Protection of Eviction Act 1977, by virtue of s3A(8) of that Act which states that a licence is excluded if it confers rights of occupation in a hostel, within the meaning of the Housing Act 1985 which is provided by a council. The potential to require C to share with others meant that the accommodation was not separate even though they had not actually been required to share. Elias J at para 26:
    ".. the solution to this issue rests upon the proper meaning to be given to the concept of a separate and self-contained set of premises. I do not think that it can simply mean physically separate and self-contained, for two reasons. First, if residential accommodation is provided in self contained premises then they must perforce be physically separated from the rest of the block of accommodation. So the concept of "separate" must be directed to some other aspect. Second, the notion of separate accommodation more naturally, in my view, is referring to accommodation which is separate for each person (with or without a partner). It is not appropriate to describe someone as being in separate accommodation if they are being compelled to share some of the facilities with someone they have not chosen. The separate bedroom does not amount to separate residential accommodation. In this case nobody was in fact required to share the accommodation whilst the appellant was there, but Mr Stark, in my opinion rightly, accepted that this was irrelevant. The potential to require sharing was no different to actual sharing."

Human rights and possession

Section 3 of the 1977 Act

Coombes v Waltham Forest London Borough Council
[2010] EWHC 666 (Admin)

Summary

Section 3 of the 1977 Act is compatible with Article 8 of the ECHR.

Facts

C had lived with his parents in a property let by W. When his father died, his mother succeeded to the tenancy. When she died, C remained in the property but had no entitlement to a tenancy. He had lived at the property for over 50 years. W served a notice to quit terminating the tenancy and sought possession. Section 3 of the 1977 Act provides that in most cases possession of occupied residential premises cannot be obtained without an order of the court. C challenged section 3 on the basis that it did not provide any forum within which the proportionality of the eviction could be assessed as was required under Article 8.

Decision

In rejecting this challenge, Cranston J held (at para 54) that:
    "Section 3 does nothing more than prohibit a property owner, like the council, from re-possessing property without first seeking a possession order from the court. The requirement to seek a possession order, rather than to recover possession without any supervision by the court, cannot be incompatible with Article 8."

Intentionally homeless


Desnousse v Newham London Borough Council

[2006] EWCA Civ 547

The issue

Lloyd LJ at para 3:
    "The issue in this case arises from the situation in which a housing authority has decided that an applicant, though homeless, eligible for assistance and in priority need, became homeless intentionally so that, once the period of temporary accommodation required under section 190 has come to an end, they are under no further duty to secure that accommodation is available for the applicant. The question is whether, before the applicant can be evicted from the accommodation whose availability has been secured in accordance with the authority's duties under the Act, the provisions of section 3 of the Protection from Eviction Act 1977 have to be complied with. If so, the right to possession can only be enforced (if it has to be) by court proceedings for an order for possession."
Decision

The answer given by the CA was "No".

Mohamed v Manek Mohamed (1995) 27 HLR 439 was correctly decided, is binding on the court and is authority for the proposition that section 3(2B) of the 1977 Act does not apply to a licence of accommodation secured by a local authority for a homeless person in discharge of its duty under section 188(1) of the 1996 Act. Nor does the present case come within any possible exceptions contemplated by the judgments in Mohamed v Manek. (The question whether Mohamed v Manek extends to former tenants as well as to former licensees was reserved to another day - an unlikely proposition given that in these situations licences are always granted).

By a majority (Lloyd LJ dissenting) the CA also came to the conclusion that the ability to terminate the licence and to obtain possession without the need for a court order does not fall foul of Article 8 of the ECHR. The law in this regard is proportionate. The consequences of a different conclusion would be far-reaching and would seriously hamper the ability of local authorities to discharge their duties under the 1996 Act (see in particular the judgment of Tuckey LJ at paras 14 and 145).


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