West Law Report

Tenant hid mother’s death

Posted in Times Law Report by mrkooenglish on August 10, 2008

From The TimesAugust 11, 2008

Tenant hid mother’s death
Court of Appeal

Published August 11, 2008

Newport City Council v Charles

Before Lord Justice Laws, Lord Justice Longmore and Lord Justice Richards

Judgment July 17, 2008

A council tenant who concealed his mother’s death for three years in order to avoid being moved to a different property could not be ousted on that ground because the time limit for doing so had expired before the local authority discovered his mother had died.

The Court of Appeal so held allowing an appeal by the tenant, Stuart Malcolm Charles, from the dismissal by Judge Milwyn Jarman, QC, in Cardiff County Court on January 22, 2008, of his appeal against a possession order in favour of Newport City Council made by District Judge Fraser on October 4, 2007, over 1B Marlborough Road, Newport.

Mr Michael Barnes, QC and Mr John Beckley for the tenant; Mr Andrew Arden, QC and Mr Iain Wightwick for Newport.

LORD JUSTICE LAWS said the tenant had lived in the property with his mother. When she died, he was told the council would probably seek possession so as to move him to smaller premises.

He decided to conceal her death and did not inform the registrar of deaths or the local authority. He continued to pay the rent in his mother’s name, as before and continued to live for all the world as if she were still alive.

His Lordship felt driven to say that the findings made by the district judge disclosed deliberate dishonesty. Schedule 2, ground 16 of the Housing Act 1985 gave the local authority a right to seek possession provided it did so at least six months and not more than 12 months after the mother’s death.

When the local authority found out, some three years afterwards, that the mother was dead, it went ahead with the application on the basis that the tenant was estopped from claiming that his mother had died.

There was no doubt of the tenant’s fraud, but the estoppel could not be relied on to found a cause of action by the local authority unless it constituted a proprietory estoppel.

The council’s right to seek possession under the 1985 Act was a purely statutory and not a proprietory right, since the local authority’s freehold interest in the property was not at issue.

It bore all the hallmarks of an estoppel by representation and so was only a shield and could not found the local authority’s claim because it was outside the time limit.

That was unjust and frustrated the statutory purpose. It meant that the house could not be used a family who needed it. His Lordship hoped the legislature might find a way out of the problem revealed by the case. Lord Justice Richards agreed and Lord Justice Longmore delivered a judgment concurring in the result.

Solicitors: Hodson Parsons James & Vaux, Newport; Ms Diane Gunderson, Newport.

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