Seeking possession against guardians

Elizabeth Dwomoh looks at two issues that arose in a claim for possession against a property guardian. Key points A sub-licensee has standing to bring a claim for possession against a trespasser if contractually or by proper implication the sub-licensee enjoyed sufficient “control” of the land The threshold for a claim disputed on grounds which appear substantial in accordance with CPR 55.8 was relatively low In general, a property guardian is an individual who enters into occupation of premises or part of premises that would otherwise be empty for the principle purpose of securing and, if agreed, maintaining the premises. The nature of a property’s guardian’s occupation is not defined by statute. An increasing number of claims for possession against property guardians are being litigated. Global 100 Ltd v Kyselakova and others [2021] EW Misc 13 (CC); [2021] PLSCS 153 highlights some of the procedural issues that can arise. The property guardianship scheme NHS Property Services Ltd (NPS) owns the Stamford Brook Centre in Hammersmith, London, W6. In March 2016, NPS entered into a written property guardianship agreement with Global Guardians Management Ltd (GGM). Under the terms of the guardianship agreement, GGM agreed to keep the premises habitable, manage the property and install individuals as “guardians”. In January 2018, GGM entered into a contractual “inter-company arrangement” with Global 100 Ltd (G100). Under its terms, GGM gave “permission or licence” to G100 to grant temporary licences to individuals to occupy part or parts of the premises as “guardians”. G100 was also granted “sufficient interest… to bring claims for possession”. In 2019, Maria Laleva went into occupation of the premises. In April 2020, she entered into a temporary licence agreement with G100 in respect of her occupation. In mid-2020, NPS gave GGM notice that vacant possession of the premises was required. On 30 August 2021, G100 sent Laleva written notice to quit the premises. Laleva failed to vacate the premises and G100 commenced possession proceedings. The first hearing The claim for possession was brought as a trespasser claim under the Civil Procedure Rules Part 55. CPR 55.8 provides that, at the first hearing of a possession claim, the court must determine whether a possession order can be made summarily or whether case management directions should be given to list the matter for trial as a defended claim. Pursuant to CPR 55.8(2), case management directions can only be given in circumstances where the claim is “genuinely disputed on grounds which appear to be substantial”. As part of her defence, Laleva contended that G100 did not have legal standing to bring the claim for possession. She also argued that G100 was neither the owner of the premises nor a beneficiary of the guardianship agreement. Additionally, the terms of the inter-company arrangement did not grant G100 an interest in any particular land. Laleva also pleaded that the licence agreement was a sham and that she occupied the premises under an assured shorthold tenancy agreement. The first-instance judge made an order for possession. She found on the evidence that G100 had standing to bring the claim. Further, she determined that the defence advanced by Laleva did not appear to raise substantial grounds for defending the claim. Laleva appealed. The basis of her appeal included grounds that the judge was wrong to find that G100 had legal standing and that her defence did not appear to raise substantial grounds for defending the claim. Sufficient control CPR PD 55A paragraph 2.6 provides that in “a possession claim against trespassers, the particulars of claim must state the claimant’s interest in the land or the basis of his right to claim possession…”. Judge Luba QC, who heard the appeal, determined that in such circumstances, if a sub-licensee enjoyed either by contract or by proper implication sufficient “control” of the land, the sub-licensee would have sufficient standing to bring a claim for possession against a trespasser. Under the terms of the inter-company arrangement, Judge Luba QC found that G100 had licence to install, and if required, remove guardians from the premises. G100 was also granted “sufficient interest… to bring claims for possession”. This ground of appeal was dismissed. Substantially arguable Relying on Birmingham City Council v Stephenson [2016] HLR 44, Judge Luba QC acknowledged that the decision to adjourn a hearing fell squarely within the court’s case management powers. Accordingly, an appellant court had to accord substantial deference to the trial judge’s exercise of that power. Yet, he noted that the specific inclusion of the features identified in CPR 55.8 strongly suggested that, if a claim before a judge was disputed on grounds which appeared to be substantial, then case management direction should ordinarily be given. Judge Luba QC commented that the threshold in CPR 55.8 was a relatively low one, but this did not mean that the filing of a fully pleaded defence was all that was required to surmount that threshold. On the facts of the present case, Lavela’s contention that her licence agreement was a sham appeared to raise substantially grounds for defending the claim and she ought to have been given the opportunity to do so. As Judge Luba QC correctly observed, it would be helpful to both first-instance judges and those who sit on first appeal to have a clear steer on the correct application of CPR 55.8. Elizabeth Dwomoh is a barrister at Lamb Chambers Photo by Ray Tang/Shutterstock