Court of Appeal overturns decision on Francis v Brent case where tenant vacated property for five years

Ref. Francis v Brent Housing Partnership & Ors [2013] EWCA Civ 912

The legal proceedings on which the case referenced above is concerned is an appeal that began on 15^th February 2010, when Caroline Francis brought a case before the High Court (Queen’s Bench Division). She claimed that she was the tenant of a flat at 25C Stonebridge Park, London and that the second defendant/respondent, the London Borough of Brent, was her landlord.

Brent did not dispute this as being true between the period June 1981 to about 22 May 2005. On the 18^th May an agreement was struck which entailed Ms Francis moving out while necessary repairs were carried out to the property. The council predicted these repairs would take 5 days…though they were completed around 5 years later. Prima facie, that agreement entitled her to return to No 25C when the works were completed.

Despite this, the flat was rented out to a third party whilst Ms Francis was in temporary accommodation elsewhere. Ms Francis sought to reclaim possession of her original flat through the courts, and to claim damages for the extensive period she was ousted from residence, but His Honour Judge Moloney QC found instead that she had a secure tenancy of the new flat she currently occupied, but not the old residence.

The key point in that judgement was that Ms Francis had been issued with possession proceedings on 21 March 1991. After this time she was simply a ‘tolerated trespasser’ in the flat in question. With no real tenancy to speak of, the Judge had to decide whether he could infer the creation of a new tenancy in the correspondence that led to her being decanted into the alternative accommodation whilst repairs were carried out. The Judge could not infer such a tenancy, so Ms Francis had no right to occupy the property.

Put before the Court of Appeal, that decision has now been overturned. Lord Justice Rimer explained:

“The judge [in the High Court] was of the view that, in signing the decant agreement, the parties had simply forgotten the making of the earlier possession order and had signed the decant agreement in unawareness of it. There was, however, no evidence before him from either party to such effect and so in that respect he was simply making an educated guess.

“He may have been right, although I regard it as equally possible that neither of the parties had overlooked the prior order or its effect but that Brent nevertheless thought that the form of decant agreement that it promoted for signature by the parties would achieve the commercial end that both it and Ms Francis intended to achieve, namely the removal of Ms Francis on a temporary basis, the conferring on her of the right to return in due course to No 25C and, if necessary, the conferring on itself of the right to compel her to do so by recourse to Ground 8.”

“In my view….absent any evidence from either party that the decant agreement was vitiated by relevant mistake, the court ought not to find that it was. There is no justification for any conclusion that, prior to the signing of the decant agreement, Brent thought, understood or believed that Ms Francis was anything other than a tolerated trespasser in No 25C.

“She had in fact been such for 14 years and, although the relationship had had its ups and downs, Brent appears to have regarded her as, for practical purposes, a permanency. When, however, in due course the need arose to remove her from No 25C for repair purposes, Brent and Ms Francis agreed to deal with this by the decant agreement.”

Ultimately, Lord Justice Rimer concluded that it was apparent from the agreement that Brent was expressly recognising Ms Francis as its secure tenant.

Thus, despite the council allowing a third party to undertake a tenancy agreement with regards to the subject property and despite five years spent living somewhere else, Ms Francis’ appeal has been allowed and she will return to her former home – at least until she falls into arrears once again…

The whole judgement is available on this link.

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If a tenanted property under your ownership requires extensive repairs, do ensure that you both seek the appropriate legal advice with regards to any appropriate decanting and instruct a qualified Chartered Surveyor to create for you a detailed Schedule of Works / Repairs. If this case teaches us anything, it is to be sure to remember and make very clear what the status of the tenant is before proceeding – a tenant with a recognisable secure tenancy will almost certainly regain possession eventually.

An independent Chartered Surveyor with the required skills can be found at the link below:

www.PropertySurveying.co.uk

 

SRJ / LCB                                                                                                       21/08/2013

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