A Promise is a Promise, even when attempting to Evict

Article

03 April, 2009

The case of Tommy McGlynn v Welwyn Hatfield District Council (2009) EWCA Civ 285 has highlighted the importance of landlords, both from the private and public sector, ensuring that they are fully aware of the implications their correspondence with tenants may have. If particular phrases or sentences in documents are disregarded or ignored it may be, as this case showed, that a summary possession order will be set aside.

The Facts

Mr McGlynn (M) was a tenant of the Council and lived in a flat under a non-secure tenancy. After a series of complaints of anti-social behaviour made by a neighbour against M and visitors to his flat, the Council served a notice to quit for breaching the tenancy agreement. M replied that he wished to move to a smaller property and that the visitors to his flat were as unwelcome to him as they were to his neighbour.

A letter sent by the Council stated that it did not wish to take action against a tenant unless it was satisfied that there had been a significant breach of the tenancy agreement, which caused nuisance or annoyance to neighbouring residents. It also said that should they seek a possession order, M would be given the opportunity to defend himself and that if they received no further complaints linked to M or his property, they would consider granting him another non-secure tenancy.

Ten months later, the Council began proceedings to obtain a possession order against M following continuing complaints. Such an order was made on the basis that the notice to quit was valid and that M had no arguable defence.

This decision was overturned on appeal and M served a defence claiming that the letter sent to him by the Council had created a legitimate expectation that they would not seek such an order unless there had been a significant breach of the tenancy agreement. M contended that they could not have been satisfied that there was such a serious breach and consequently, they acted unreasonably in pursuing the possession order. The district judge hearing the case ruled that M's defence was not seriously arguable and made a summary possession order.

In his further appeal, M submitted that the district judge had taken an over narrow view of the intention of the letter and had not considered whether they had in fact been satisfied that the alleged nuisance had continued.

The Court of Appeal's Decision

In allowing M's appeal, the Court of Appeal held that the district judge had indeed taken a narrow view of the Council's letter. This document contained a statement of policy with regards to undertaking possession proceedings and that the Council would not take such action unless satisfied there had been a significant breach. It was the court's view that due to the lapse of time after service of the notice to quit and the issue of the possession proceedings. The question to be determined by them was whether it was seriously arguable that a reasonable local authority would not have issued the proceedings, unless they were satisfied that there were considerable breaches of the agreement.

The court determined that whilst a local authority were not required to conduct the equivalent of a judicial investigation into how substantial an alleged breach was, it had to be considered whether the Council had done enough to satisfy itself that the breaches were worthy of proceedings being brought. It was held that the district judge had been provided with insufficient information about the Council's decision making process in order to reasonably conclude that M's defence was not seriously arguable.

Summary

This case has shown the importance of landlords being fully aware of the contents of documents and how they are drafted. A failure to appreciate the significance of a sentence or even the implication of what a passage of text says, can lead to possession orders being set aside. This will inevitably cost a landlord greater expense in terms of time and money being invested into seeking new proceedings.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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