Alamo Housing Co-Operative Ltd v Meredith & Ors

A claimant seeking possession need not retain an estate in the land or be in actual occupation. It must, however, possess a subsisting right to possession sufficient to support the remedy claimed.

A lease may preserve such a right after the tenant’s estate has ended. A provision continuing the tenant’s interest for the purpose of enabling eviction conferred a continuing right to possession so that the former tenant could recover premises from subtenants who had no right to remain.

A local authority leased properties to a fully mutual housing association, which granted temporary subleases to seven occupiers. The headlease provided that, following the authority’s notice, the association’s interest would cease except for the purpose of enabling eviction if required by the authority.

After the authority required vacant possession, both it and the association served notices to quit. The association then obtained possession orders in the Clerkenwell County Court. The occupiers appealed with the district judge’s permission.

The central issue was whether, after its estate under the headlease had ended, the association retained a sufficient interest to bring possession proceedings.

1. Appeals dismissed. Lord Justice Schiemann delivered the judgment of the court. Although the association’s estate in the land had ended when the authority’s notices took effect, the exception in clause 2(1) of the headlease conferred a continuing right to possession for the purpose of evicting the subtenants.

2. A claimant in possession proceedings need not be in actual occupation. Nor must the claimant invariably possess an estate in the land. The required interest is a right to possession sufficient to support the particular remedy. In Manchester Airport Plc v Dutton and Others [2000] 1 Q.B. 133, a licensee not in occupation could obtain possession where that relief was necessary to vindicate its contractual right to occupy. By contrast, Countryside Residential (North Thames) Limited v A Child (2001) 81 P&C.R.10 showed that a mere right of access, without occupation or effective control, was insufficient.

3. The headlease had to be construed in its contractual setting. The authority had required the association to evict the occupiers and return the properties with vacant possession. The words preserving the association’s interest for the purpose of enabling eviction therefore granted the very right to possession needed to achieve that purpose. A lesser construction would have made the exception ineffective.

4. The occupiers asserted no right to remain, while the freeholder was entitled to the premises and had required their eviction. Possession proceedings were consequently an appropriate means of vindicating the association’s continuing right.

5. The court also disapproved the district judge’s post-judgment reallocation of the claims from the fast track to the multi-track to secure an appeal directly to the Court of Appeal. The proper route was transfer under section 57 of the Access to Justice Act 1999 and Part 52.14 of the Civil Procedure Rules 1998. That power should be used sparingly. The procedural irregularity did not affect the appeals.

• Court of Appeal (Civil Division): The seven appeals were dismissed by the court in [2003] EWCA Civ 495 . The possession orders remained in force.
• Clerkenwell County Court: District Judge Armon Jones entered judgment for the housing association and granted permission to appeal. No citation is stated.