Rhodes v Kensington Housing Trust

Where fire or another event makes rented premises unsafe, a court may require the tenant temporarily to vacate so that inspection and remedial works can safely occur. A contractual access covenant may carry an obligation to vacate where inspection or works cannot be undertaken with the tenant present. The court also indicated that a corresponding term may be implied where premises are unsafe or repairs require temporary vacation. Once temporary vacation has been ordered, restoring electricity during that period may be inappropriate, particularly where the electrical system is unsafe. Permission to appeal should be refused where the challenge to uninhabitability rests only on the tenant’s view against strong surveyor evidence and has no realistic prospect of success.

Following a fire at a flat occupied by David Rhodes, Kensington Housing Trust sought an order requiring him temporarily to vacate because the premises were unsafe, offering alternative accommodation. HHJ Crawford Lindsay QC ordered Rhodes to leave, permitted limited access to remove possessions, and later granted the Trust exclusive possession for four months together with injunctions regulating access and conduct. The stay of that order was continued temporarily to permit an appeal. Grigson J discharged the stay on 13 May 2004, effective from 17 May 2004. Rhodes applied to the Court of Appeal for permission to appeal and for restoration of the stay, arguing that the flat was not uninhabitable and that the decision had prevented restoration of electricity. The central issue was whether those grounds had any realistic prospect of success.

1. Application refused. Grigson J had been plainly right to discharge the stay. The proposed challenges to HHJ Lindsay’s order had no realistic prospect of success.
2. The finding that the flat was effectively uninhabitable was amply supported. The first-instance judge had strong evidence from the Trust’s principal surveyor and an independent chartered surveyor. That evidence identified debris, risks from falling ceilings, possible structural danger, risks to adjoining tenants, extensive fire damage, and unsafe electrical and plumbing systems. In the absence of cogent independent evidence to the contrary, the judge was entitled, and effectively bound, to accept that evidence. The tenant’s own contrary view did not make the proposed appeal arguable.
3. Once the judge had concluded that Rhodes had to vacate temporarily, it would have been inappropriate to require or contemplate requiring the Trust to restore electricity during the period of absence. Independently, the evidence indicated that the electrical system was potentially perilous, providing an additional reason not to order its restoration.
4. As an additional observation, the tenancy provision requiring access for inspection and repairs carried an obligation on the tenant to vacate where the inspection or works could not safely be carried out while he remained in occupation.
5. The court further indicated, although this was unnecessary to the disposal of the application, that even without such an express term there was a powerful case for implying a term preventing occupation, or requiring temporary vacation, where premises had become unsafe through fire or another cause or required repairs that could not be carried out with the tenant present.

Order: Application refused.

• Court of Appeal (Civil Division): On 17 May 2004, Lord Justice Neuberger refused permission to appeal and refused to restore the stay.
• High Court, Queen’s Bench Division: Grigson J discharged the stay on 13 May 2004, effective from 17 May 2004. The stay had related to orders made by HHJ Crawford Lindsay QC requiring temporary vacation of the premises.