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Notice to quit

One more chance

No new tenancy

Fareham Borough Council v Miller
[2013] EWCA Civ 159

Summary

L had terminated T’s non-secure tenancy by service of a notice to quit following anti-social behaviour by him and others occupying his property. Although L had given T one more chance, it was not possible to revoke a notice to quit and as they had not granted a new tenancy to T, they were entitled to possession.

Facts

T had a non-secure tenancy from L after they decided that he was unintentionally homeless and in priority need. During periods in prison, others had entered T’s property and caused anti-social behaviour. L therefore decided to bring the tenancy to an end and served a notice to quit. Once T came out of prison, L gave him a last chance to remain at the property, however, when he was recalled to prison, L sought possession. T stated that he had given the keys to someone to keep an eye on his property and collect his post whilst in prison, but he had not permitted anyone to live there.

Decision at first instance

The court found that the local authority had been justified in serving notice to quit, but refused to order possession. In deciding to give T another chance, the notice had been revoked and tenancy had been reinstated. Therefore, the termination had not taken place and the local authority had no cause of action. L appealed to the Court of Appeal.

Decision on appeal

The Court of Appeal allowed the appeal and found for L.

The Court held that as a matter of law it was impossible for L to revoke the notice to quit (Tayleur v Wildin (1868) LR 3 Ex 303). After the expiry of the notice to quit it was possible for a new tenancy to be inferred from the landlord’s acceptance of rent. Here, the decision to give T another chance was never more than a conditional one and, once he had re-offended, L decided to press ahead with its claim for possession. The Court held that it was impossible to infer from the use of housing benefit to meet the cost of providing the flat any intention to create a new tenancy. Thereafter T was no more than a tolerated trespasser.

T argued that the possession order was in breach of Article 8 in that he had not caused the nuisance and whilst he had given his keys to one of the perpetrators, he had not sanctioned him staying in the property. As to this, the Court held that whilst Article 8 was engaged in the case of a non secure tenancy granted under the homelessness provisions of the Housing Act 1996, a full proportionality review was not appropriate in every case. It was not appropriate here as T’s personal circumstances were not such as to require a review. Further whether or not he was responsible for the anti-social behaviour was not relevant as L was entitled to consider the needs of the neighbours.


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