Yildiz v London Borough of Hackney: the interaction between section 83(1) and Ground 15A of the Housing Act 1985

This is an important decision for local housing authorities and will affect how they approach succession cases where there is potential under-occupancy .

The facts

Upon the death of his father in September 2014, Mr Yildiz succeeded to the tenancy of a four-bedroom house in Hackney, under section 89 of the Housing Act 1985.  However, the council believed he lived alone in the property.

Accordingly, in January 2015, the council sent Mr Yildiz a letter informing him that he was under-occupying the property and was required to move to more suitable alternative accommodation.  In the following June, it served a notice of seeking possession upon him, under section 83(1)(a) Housing Act 1985.  The notice remained in force until 20 July 2016.

The ground of possession relied upon by the council in the notice was Ground 15A, Part III of Schedule 2, Housing Act 1985 (under-occupancy of English properties by successor tenants).  Importantly, Ground 15A(b) requires that “notice of the proceedings for possession was served under section 83 (or, where no such notice was served, the proceedings for possession were begun) more than six months but less then twelve months after the relevant date.” In this case, the relevant date was 4 September 2014.

Unfortunately, the council did not issue possession proceedings until 8 August 2019, nearly three weeks after the notice had lapsed.  Mr Yildiz defended the claim on a number of bases but his primary point was that the claim should be struck out because it had been issued after the notice ceased to be in force.

The council issued an application for the court to dispense with the requirement of a section 83 notice, under section 83(1)(b).  Rejecting Mr Yildiz’s arguments, the Deputy District Judge held that the court had jurisdiction to dispense with the requirement of a notice and exercised his discretion to determine the application in favour of the council.  The Deputy Circuit Judge dismissed Mr Yildiz’s first appeal.  He then appealed to the Court of Appeal.

The arguments

Before the Court of Appeal, Mr Yildiz argued that Ground 15A was a self-contained procedural regime.  A landlord had to either serve a section 83 notice or, if no such notice was served, issue the claim for possession within the statutory six-month window.  Further, said Mr Yildiz, a landlord could elect not to serve a notice at all and simply issue a claim for possession.  For claims brought under Ground 15A, section 83 was practically irrelevant.

The council contested Mr Yildiz’s analysis of section 83 and Ground 15A.  It said section 83 was important because it gave courts the jurisdiction to entertain possession proceedings (subject to certain express exceptions; Ground 15A not being one of them).  In this case, the council said it had satisfied the requirements of Ground 15A(b) because it had served the notice within the statutory six-month window.  However, it could not rely on the notice for the purposes of section 83(1)(a) because it had ceased to be in force before the claim was issued – hence its application for dispensation.

The decision

The court allowed Mr. Yildiz’s appeal and struck out the claim for possession.  Summarising the judgment of the court, Lord Justice Newey said “…a notice cannot constitute notice of proceedings begun more than 12 months later than the specified date.  In other words, it is not good enough that the landlord at some stage, however long ago, served a notice which, pursuant to both its own terms and those of section 83, is now spent.  A notice must still be current if a landlord is to issue possession proceedings on the strength of it.  In the absence of a relevant notice (because either none was ever served or any notice that was served had expired) a claim for possession based on ground 15A will be possible only if the proceedings were begun less than 12 months after the ‘relevant date’”.

Miriam Shalom appeared for the London Borough of Hackney.