Chowdhury & Anor v Woodman

On a second appeal, permission requires a real prospect of success and an important point of principle or practice, or another compelling reason for the appeal to be heard.

Under section 21 of the Housing Act 1988, possession is mandatory once the assured short hold tenancy has ended and the prescribed notice has been given. The court has no discretion based on alleged disrepair, breach of quiet enjoyment or other counterclaims, although a counterclaim may be relevant where possession is sought for rent arrears. A tenant who has accepted possession is generally estopped from denying the landlord’s title.

Chowdhury & Anor v Woodman concerned a claim for possession of a house let under an assured short hold tenancy. The landlord relied on notice under section 21 of the Housing Act 1988.

A district judge made a possession order. After further county court proceedings, HHJ Harris QC dismissed the tenants’ appeal on 27 January 2012. The tenants sought permission for a second appeal, relying on alleged failures concerning deposit-protection information, the landlord’s entitlement to grant the tenancy, a defective gas boiler, breach of quiet enjoyment and procedural unfairness. The central issues were whether those matters gave the proposed appeal a real prospect of success or raised an important point of principle or practice.

Permission to appeal refused. Lord Justice Lewison held as follows.

1. Second appeal threshold. A second appeal requires both a real prospect of success and either an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it.
2. Mandatory possession under section 21. Under section 21 of the Housing Act 1988, the court must order possession if satisfied that the assured short hold tenancy has ended and that notice under section 21 has been given. The court has no discretion in those circumstances.
3. The tenants’ complaint that they had not received deposit-protection details within the statutory period raised only a question of fact. The county court judge had clearly found that appropriate notifications had been given. The ground therefore raised no important point of principle and had no real prospect of success.
4. The arguments that the landlord lacked authority to grant the tenancy, because of bankruptcy or failure to obtain mortgagee consent, could not assist the tenants. If the landlord could not grant a tenancy, the tenants had no right to remain in possession. Further, a tenant who has been given possession is estopped from denying the landlord’s title.
5. Complaints about the gas boiler and alleged breach of quiet enjoyment might support a counterclaim, but they did not constitute a defence to possession under the mandatory section 21 procedure. A counterclaim might be set off against rent arrears where arrears were the ground for possession, but rent arrears were not the ground relied on here.
6. The alleged absence of the appeal bundle did not establish an important point of principle or practice. Even assuming an irregularity, there had been ample time to advance the points relied upon, and the Court of Appeal had considered them. None had a real prospect of success.

The court refused permission to appeal. Exercising its statutory power to extend the time for possession by up to six weeks, it ordered possession on 25 June 2012 in view of the serious medical condition of Mrs Chowdhury and her daughter.

1. Court of Appeal (Civil Division): refused permission for a second appeal and ordered possession on 25 June 2012.
2. Oxford County Court, circuit judge: HHJ Harris QC dismissed the tenants’ appeal on 27 January 2012.
3. Oxford County Court, district judge: District Judge Byass made the operative possession order on 16 December 2011, requiring possession on or about 22 December 2011.
4. Earlier county court proceedings: District Judge Jenkins made an order on the papers on 1 November 2011, which was subsequently set aside. An appeal against that order was dismissed by Mr Recorder Hamlin on 13 January 2012.