Amrit Holdings Co Ltd v Shahbakhti

Protected tenancy — Possession — Whether alternative accommodation available to tenant where let by him on assured shorthold tenancy — Whether reasonable to order possession — Section 98(1)(a) of Rent Act 1977 — Judge refusing possession — Appeal dismissed The respondent was the tenant of a flat that he had occupied for more than 25 years under a tenancy protected by the Rent Act 1977. The appellant landlord sought possession on the ground contained in section 98(1)(a) of the 1977 Act, namely that suitable alternative accommodation was available to the respondent and that it was reasonable to order possession. The alternative accommodation was a nearby property that was owned by the respondent and let on an assured shorthold tenancy, the contractual term of which had expired. The property was one of several that the respondent owned and let. The appellant additionally sought to establish that the respondent no longer occupied the flat as his residence, and that he therefore no longer qualified for protection under the 1977 Act. The judge rejected the section 98(1)(a) ground after finding that the respondent’s property was not “available” to him within the meaning of the section. He also held that it would, in any event, be unreasonable to make a possession order. He found that the ground of non-residence was not made out on the evidence. The appellant appealed. It argued that the test of availability would be met if the respondent could obtain possession of his property without unreasonable expense or difficulty, which the evidence suggested he could. As to the reasonableness of making the order, it contended that the purpose of the legislation was to avoid hardship to tenants caused by housing shortages, and that the respondent would suffer no hardship given his substantial means and portfolio of his residential properties. Held: The appeal was dismissed. Although the questions of availability of alternative accommodation and reasonableness were separate issues, there was some overlap between the two. If the test of availability was that proposed by the appellant, the assessment would be a matter of judgment. It was not possible to find that the respondent’s property was available within the meaning of the 1977 Act, before establishing that it was reasonable to expect him to take steps to recover it. It was relevant that the appellant was requiring the respondent to arrange his affairs and to eject his tenant so that it could remove him from his home of 25 years. The financial implications were also relevant: among other matters, the respondent would lose the rental income from his property, which was substantially more than he would save in rent on his current residence. The origin of statutory provisions had to be distinguished from the operation of the scheme that the statute set up. If the appellant’s suggested purpose were read in, it was hard to see how the court could ever refuse possession in a case where the tenant had alternative accommodation. Instead, the question was whether it was reasonable to make the respondent move to the alternative accommodation. The judge had been entitled to take the view that he had on that matter. The court had no ground upon which to undermine the judge’s conclusion that the respondent was resident at the appellant’s property, and that ground of appeal would be also dismissed. Mark Sefton (instructed by Wallace LLP) appeared for the appellant; William Geldart (instructed by Johns & Saggar Solicitors) appeared for the respondent. Sally Dobson, barrister