Court of Appeal agrees to hear case on secure tenancy succession, under-occupation and dispensing with service of notices

Garden Court Chambers said the case of London Borough of Hackney v Yavus Yildiz concerns the interaction between:

• Ground 15A of Schedule 2 of the Housing Act 1985, which provides a mechanism for a landlord to seek possession from a successor following the death of a family member, where the property is being under-occupied. “The ground sets out a time limit during which possession must be sought. The tenant must be given notice of seeking possession and proceedings must be commenced more than six months and less than twelve months after the notice has been served. In the alternative, they can decide to proceed to seeking possession without service of a notice. In those circumstances, the landlord must bring proceedings more than six months but less than twelve months after they became aware of the previous tenant’s death.”
• Section 83 of the 1985 Act which states that a court shall not entertain possession proceedings unless the landlord has served a notice on the tenant complying with the provisions of the section or the court considers it just and equitable to dispense with the requirement for service of such a notice. 

Mr Yildiz is represented by Tim Baldwin leading Stephen Marsh, both of Garden Court, who are instructed by Farzana Chowdhury of Hodge Jones and Allen Solicitors. 

Commenting on the case, Garden Court Chambers said: “The question before the court is whether, if a court decides it is just and equitable to dispense with the need to serve a notice of seeking possession, this has the effect of also dispensing with the requirement to bring the proceedings within the alternative time limit of not less than six months and not more than twelve months after the landlord became aware of the previous tenant’s death.”

In a first appeal heard in the County Court in Central London it was found that it did have this effect. This is now challenged by Mr Yildiz.

“To date there is no binding authority on how the court should approach the question of how these sections of primary legislation interact and it will require close scrutiny by the Court of Appeal as the arguments made by both sides in the case are complex in law,” Garden Court said.

“This is of clear importance as to how the right of succession to a secure tenancy will operate and how a local authority may secure possession if the succession to the tenancy results in underoccupation.”

The appeal is due to be heard by the Court of Appeal on 10 or 11 July 2019.