Kornhauser v Notting Hill Housing Trust

A tenancy from a charitable housing trust does not, merely because the landlord is a trust, give the tenant a beneficial interest in the trust property. A tenant occupying under a tenancy agreement is not in adverse possession against the landlord. In a permission application concerning beneficial ownership, arguments about disability discrimination, Convention rights, harassment or other tenancy matters do not bear on the lower court’s determination and should be raised in possession proceedings. Permission was refused because there was no real prospect of overturning the finding that the tenant had no beneficial interest.

The appellant applied for permission to appeal from Morgan J’s decision in the Chancery Division on 27 November 2007. Morgan J had dismissed his application for declarations that property occupied by him was held on trust and that he had an interest in it. The appellant was a tenant of the respondent charitable housing trust.

On the renewed application, he relied on the Disability Discrimination Act 1995, Convention rights, adverse possession and other complaints about his tenancy. He also sought an injunction concerning access to his flat, while separate possession proceedings for rent arrears were pending. The central issue was whether any of these matters disclosed a real prospect of successfully challenging the order concerning beneficial ownership.

1. Application refused. There was no real prospect of successfully appealing Morgan J’s order that the appellant had no beneficial interest in the property.
2. The Court of Appeal’s jurisdiction was confined to reviewing the decision before it. It could not determine new issues or grant original relief unrelated to that decision. Questions concerning tenant rights, alleged harassment, housing conditions, discrimination and Convention rights were matters for the court hearing the possession proceedings, not for this appeal.
3. The fact that the landlord was a charitable housing trust did not give its tenants beneficial rights in the trust property. The trust existed for charitable purposes and was not a trust for individual human beneficiaries. The appellant’s tenancy therefore created no beneficial interest in the property.
4. Possession under a tenancy agreement was consensual possession and was not adverse possession against the landlord. The appellant’s occupation for more than twelve years did not alter that conclusion.
5. The possible application of the Disability Discrimination Act 1995 to eviction, including the relevance of Lewisham London Borough Council v Malcolm (Disability Rights Commission intervening) [2007] EWCA Civ 763, was not decided. Those arguments could be advanced before the district judge in the possession proceedings. The court likewise expressed no view on the merits of the Article 8 or possible Article 3 arguments.
6. The Court of Appeal had no jurisdiction to entertain the proposed injunction application. Any such application had to be made, if appropriate, in the court hearing the possession proceedings.

• Court of Appeal (Civil Division): On 12 March 2008, the renewed oral application for permission to appeal was refused. The proposed appeal had no real prospect of success.
• High Court, Chancery Division: Morgan J dismissed the appellant’s application on 27 November 2007, holding that he had no beneficial interest in the property.